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`Defendants.
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`No. 2:19-cv-00322-JRS-MG
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`v.
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`RICHARD BROWN,
`JERRY SNYDER,
`RANDY PURCELL,
`DAVIS,
`ANDREA STROUP,
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 1 of 13 PageID #: 388
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`TIMOTHY WAYNE ROBERTSON,
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`ORDER GRANTING IN PART AND DENYING IN PART
`MOTION FOR SUMMARY JUDGMENT
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`Plaintiff Timothy Wayne Robertson, an Indiana inmate, brought this action under 42
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`U.S.C. § 1983 alleging that the defendants held him in segregation in violation of his Eighth and
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`Fourteenth Amendment rights and that defendant Brown was deliberately indifferent to his hand
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`injury in violation of his Eighth Amendment rights. The defendants have moved for summary
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`judgment. Dkt. 54. For the reasons discussed in this Order, the defendants' motion for summary
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`judgment, dkt. [54], is denied as to Robertson's Fourteenth Amendment claims against defendants
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`Snyder, Purcell, and Stroup and granted as to all other claims.
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`I.
`Summary Judgment Standard
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`Summary judgment shall be granted "if the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
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`56(a). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must inform the court "of the basis for
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 2 of 13 PageID #: 389
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`its motion" and specify evidence demonstrating "the absence of a genuine issue of material
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`fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
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`burden, the nonmoving party must "go beyond the pleadings" and identify "specific facts showing
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`that there is a genuine issue for trial." Id. at 324.
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`In ruling on a motion for summary judgment, the Court views the evidence "in the light
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`most favorable to the non-moving party and draw[s] all reasonable inferences in that party's
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`favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). It cannot weigh
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`evidence or make credibility determinations on summary judgment because those tasks are left to
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`the fact-finder. See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court
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`need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit
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`has repeatedly assured the district courts that they are not required to "scour every inch of the
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`record" for evidence that is potentially relevant to the summary judgment motion before
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`them. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017).
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`A dispute about a material fact is genuine only "if the evidence is such that a reasonable
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`jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If no reasonable
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`jury could find for the non-moving party, then there is no "genuine" dispute. Scott v. Harris, 550
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`U.S. 372, 380 (2007).
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`II.
`Facts and Background
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`At the times relevant to the complaint, Robertson was housed at Wabash Valley
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`Correctional Facility (WVCF). Richard Brown was the Warden of WVCF. Jerry Snyder was Unit
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`Team Manager. Randy Purcell was a Case Manager. Travis Davis worked in Internal Affairs. And
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`Andrea Stroup was Classification Supervisor. Dkt. 17.
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`2
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 3 of 13 PageID #: 390
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`In late February 2018, prison officials suspected that Robertson was passing drugs to
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`another inmate. Robertson tested negative for drug usage, but the inmate he was suspected of
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`supplying with drugs tested positive for meth. Dkt. 54-3.
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`On March 8, 2018, Robertson was involved in an altercation with another inmate and his
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`hand was injured. Robertson Deposition, dkt. 54-1 at 48-49. Robertson was moved to
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`administrative segregation on March 14, 2018. Dkt. 17 at 2. Defendant Travis Davis, an internal
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`investigator, told Robertson he was being placed in administrative restrictive status housing for his
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`own safety after the altercation and because Davis suspected Robertson was involved in "some
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`sort of scheme." Dkt. 54-2. Davis also asked Robertson if he wanted to stay in segregation until he
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`"talked." Dkt. 54-1 at 16. The record confirms that Davis hoped that the placement would motivate
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`Robertson to confess to drug trafficking. Dkt. 54-2. Through Robertson's time in segregation,
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`defendants Purcell, Snyder, and Stroup signed off on his classification review and appeal forms.
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`Dkt. 54-1 at 34-41; dkt. 1-1; dkt. 60-1 at 15-19.
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`On May 14, 2018, Robertson submitted a formal grievance complaining that his hand still
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`hurt from the injury he received on March 8, 2018, and that he had not been sent to a hand specialist.
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`Dkt. 54-1 at 29-30. In response, a medical provider examined him on May 14, 2018. Id. at 50; dkt. 54-
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`4. Robertson filed a grievance appeal on May 28, 2018, and defendant Warden Brown responded on
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`June 1, 2018. Brown stated that he had reviewed the grievance appeal and related documents and that
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`Robertson could file a healthcare request form if he was still experiencing hand pain. Dkt. 54-4 at 2;
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`dkt. 54-1 at 30-31. Robertson believes he was then given the form that he needed and that he submitted
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`it and was subsequently seen by medical staff. Dkt. 54-1 at 33-34.
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`On January 7, 2019, Robertson wrote an informal grievance to Warden Brown complaining
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`that he had been denied an appointment with an outside hand specialist because he was in restricted
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`3
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 4 of 13 PageID #: 391
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`housing. In response, Brown informed Robertson that no medical provider had referred Robertson
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`to an outside hand specialist and that Robertson could submit a healthcare request if he was still
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`experiencing issues with his hand. Dkt. 17-1.
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`Robertson was transferred out of administrative segregation on February 5, 2019. Dkt. 17
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`at 2. During his time in administrative segregation, he received 30-day reviews and could file
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`classification appeals. Dkt. 54-1 at 20-23. But the 30-day reviews appear to be identical print outs
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`of the same boilerplate language denying a change in placement every month. Id. at 21-22.
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`While in segregation, Robertson had access to showers, but the water was cold. His food
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`was also served cold on most occasions. Id. at 73-74. He was not allowed to attend group religious
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`services and could not attend law library. Id. at 43-44.
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`A. Fourteenth Amendment Due Process Claim
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`III.
`Analysis
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`"The Supreme Court held in Hewitt [v. Helms, 459 U.S. 460 (1983)] that the Due Process
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`Clause mandates that prison officials periodically review whether an inmate placed in
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`administrative segregation continues to pose a threat." Isby v. Brown, 856 F.3d 508, 524 (7th Cir.
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`2017). "[A] meaningful review ... is one that evaluates the prisoner's current circumstances and
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`future prospects, and, considering the reason(s) for his confinement to the program, determines
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`whether that placement remains warranted." Id. at 527 (internal quotation omitted).
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`1. Personal Involvement
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`The defendants first argue that § 1983 liability requires personal involvement in the alleged
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`constitutional violation. Dkt. 5 at 5-6. "For constitutional violations under § 1983 or Bivens, a
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`government official is only liable for his or her own misconduct." Locke v. Haessig, 788 F.3d 662,
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`669 (7th Cir. 2015) (citation and quotation marks omitted). Thus "[a] damages suit under § 1983
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`4
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 5 of 13 PageID #: 392
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`requires that a defendant be personally involved in the alleged constitutional deprivation." Matz
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`v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014); see Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir.
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`2010) ("[I]ndividual liability under § 1983 requires 'personal involvement in the alleged
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`constitutional deprivation.'“) (citation and quotation marks omitted).
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`The record reveals that defendants Purcell, Snyder, and Stroup were personally involved
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`in either preparing reviews of Robertson's placement, reviewing his classification appeals and
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`grievances, or signing off on such reviews. Dkt. 54-1 at 34-41; dkt. 1-1; dkt. 60-1 at 15-19. These
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`facts demonstrate sufficient personal involvement for these defendants to be liable for the alleged
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`constitutional violation.
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`But the record does not reflect similar personal involvement by defendants Davis or Brown.
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`Although Davis was responsible for Robertson's initial placement in segregation, there is no
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`evidence that he was involved in, or was responsible for, reviewing Robertson's continued
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`placement. Robertson testified at his deposition that defendant Purcell told Robertson to complain
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`to Davis about Robertson's continued placement in segregation, but there is no evidence that
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`Robertson did so. Dkt. 54-1 at 39-40. Similarly, there is no evidence that Warden Brown was
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`involved in the review process. Robertson testified that he addressed one request for interview to
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`Warden Brown, but defendant Snyder intercepted it and responded in place of Brown. Dkt. 54-1
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`at 29-34; dkt. 60-1 at 14.
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`Robertson mainly argues that Brown should be liable for the alleged Fourteenth
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`Amendment violation because, as warden, he was responsible for what happened at the prison.
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`Dkt. 60 at 1, 9. But there is no supervisory liability under § 1983. Locke, 788 F.3d at 669. For
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`these reasons, defendants Davis and Brown are entitled to summary judgment on Robertson's
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`Fourteenth Amendment claim.
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`5
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 6 of 13 PageID #: 393
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`2. Liberty Interest
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`The defendants argue that Robertson had no liberty interest in being placed in general
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`population because he was held in segregation for less than a year. Thus, defendants argue, he was
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`not entitled to periodic reviews of his placement in segregation. The defendants rely on Marion v.
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`Columbia Corr. Inst., 559 F.3d 693, 698 (7th Cir. 2009), for the proposition that "six months of
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`segregation is not an extreme term and, standing alone, would not trigger due process." But
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`Robertson was held in segregation for nearly eleven months. And the Marion court held that
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`Marion's confinement of nearly eight months "may implicate a liberty interest [depending on the
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`conditions]." Id. at 699. The Seventh Circuit confirmed that eight months in segregation was
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`sufficient to create a liberty interest in Williams v. Brown, No. 20-1858, 2021 WL 1124048, at *3
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`(7th Cir. Mar. 24, 2021). Furthermore, Marion and Williams involved finite sentences in
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`segregation following disciplinary proceedings while Robertson was placed in administrative
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`segregation for an indefinite period of time.
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`Both Marion and Williams discussed the standard applied in Wilkinson v. Austin, 545 U.S.
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`209, 224 (2005), which considers whether the duration and conditions "taken together [] impose
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`an atypical and significant hardship within the correctional context." The defendants argue that
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`Robertson's conditions in confinement were not harsh enough to trigger a protected liberty interest.
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`But a reasonable juror could conclude that the duration of Robertson's confinement combined with
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`the restrictive and inhospitable conditions of segregation triggered his right to periodic review of
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`his classification.
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`The defendants argue alternatively that Robertson received sufficient due process through
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`the 30-day reviews and the availability of a classification appeal. But the record reveals that the
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`30-day reviews completed by defendant Purcell mirror the types of perfunctory reviews found to
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`6
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 7 of 13 PageID #: 394
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`be meaningless in Isby. Dkt. 60-1 at 15-19. There remains a genuine issue of material fact as to
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`whether these reviews were "meaningful" for purposes of due process.
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`For these reasons, defendants Snyder, Purcell, and Stroup are not entitled to summary
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`judgment on Robertson's Fourteenth Amendment claim.
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`3. Qualified Immunity
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`The defendants argue alternatively that they are entitled to qualified immunity on this claim
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`because it is not clearly established that periodic reviews in which an inmate in restricted housing
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`has the opportunity to challenge his placement in writing but not to appear in person violate the
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`inmate's procedural due process rights or that ten to eleven months in restrictive status housing is
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`sufficiently long as to trigger a liberty interest thus even implicating the Fourteenth Amendment.
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`"Qualified immunity attaches when an official's conduct does not violate clearly
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`established statutory or constitutional rights of which a reasonable person would have known."
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`White v. Pauly, 137 S. Ct. 548, 551 (2017) (citation and internal quotation marks omitted). To
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`overcome an assertion of qualified immunity, a plaintiff must show that "(1) the defendant violated
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`a constitutional right, and (2) that [the] right was clearly established at the time of the alleged
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`violation." Sinn v. Lemmon, 911 F.3d 412, 418 (7th Cir. 2018). In other words, qualified immunity
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`is appropriate when the clearly established law, as applied to the facts, "would have left objectively
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`reasonable officials in a state of uncertainty." Horshaw v. Casper, 910 F.3d 1027, 1030 (7th Cir.
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`2018).
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`Reasonable prison officials should have known in 2018 that inmates in segregation are
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`entitled to meaningful periodic reviews. See Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983),
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`abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Isby, 856 F.3d at
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`530 ("[P]rison officials have been on notice since Hewitt that periodic reviews of administrative
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`7
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 8 of 13 PageID #: 395
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`segregation are constitutionally required, and it is self-evident that they cannot be a sham."). And
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`reasonable prison officials should have known that ten to eleven months in segregation at WVCF,
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`the same facility at issue in Isby, was sufficient to trigger a liberty interest. See Marion, 559 F.3d
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`at 699; Isby, 856 F.3d at 512.
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`Under some "extraordinary circumstances," an official may be entitled to qualified
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`immunity based on reasonable ignorance of clearly established law governing the official's
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`conduct. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982); see also Amore v. Navarro, 624 F.3d
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`522, 535 (2d Cir. 2010) (officer entitled to qualified immunity despite arresting plaintiff under
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`statute that had been held unconstitutional). But the defendants provide no evidence of such
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`extraordinary circumstances.
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`Because it was clearly established by 2018 that ten to eleven months in segregation at
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`WVCF was sufficient to trigger a liberty interest and because a genuine issue of fact remains as to
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`whether Robertson received the process required by Hewitt, summary judgment on the grounds of
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`qualified immunity is not appropriate. Isby, 856 F.3d at 530. Accordingly, defendants Snyder,
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`Purcell, and Stroup are not entitled to judgment as a matter of law based on qualified immunity.
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`B. Conditions of Confinement Claim
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`Robertson claims that the conditions of confinement in segregation are significantly worse
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`than the conditions in general population. The defendants argue that Robertson's complaints about
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`cold showers and food, and lack of access to group religious activities and the law library are
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`insufficient to support an Eighth Amendment conditions of confinement claim.
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`The Eighth Amendment's proscription against cruel and unusual punishment protects
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`prisoners from the "unnecessary and wanton infliction of pain" by the state. Hudson v. McMillian,
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`503 U.S. 1, 5 (1992) (citation and internal quotations omitted). Pursuant to the Eighth Amendment,
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`8
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 9 of 13 PageID #: 396
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`prison officials have the duty to provide humane conditions of confinement: "prison officials must
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`ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take
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`reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825,
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`832 (1994) (internal quotation omitted).
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`To succeed on a conditions-of-confinement claim under the Eighth Amendment, a plaintiff
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`must demonstrate that 1) he was incarcerated under conditions that posed a substantial risk of
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`objectively serious harm, and 2) the defendants were deliberately indifferent to that risk, meaning
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`they were aware of it but ignored it or failed "to take reasonable measures to abate it." Townsend
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`v. Cooper, 759 F.3d 678, 687 (7th Cir. 2014); Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014);
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`Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (citing cases). This standard is different that
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`the "atypical and significant hardship" standard applied in the Fourteenth Amendment context.
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`The objective showing requires "that the conditions are sufficiently serious—i.e., that they
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`deny the inmate the minimal civilized measure of life's necessities, creating an excessive risk to
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`the inmate's health and safety." Giles v. Godinez, 914 F.3d 1040, 1051 (7th Cir. 2019) (internal
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`quotation omitted). "According to the Supreme Court, … 'extreme deprivations are required to
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`make out a conditions-of-confinement claim.'" Id. (quoting Hudson, 503 U.S. at 9). "If under
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`contemporary standards the conditions cannot be said to be cruel and unusual, then they are not
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`unconstitutional, and [t]o the extent that such conditions are restrictive and even harsh, they are
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`part of the penalty that criminal offenders pay for their offenses against society." Id. (internal
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`quotation omitted).
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`After showing the objective component, a plaintiff must next establish "a subjective
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`showing of a defendant's culpable state of mind," and "the state of mind necessary to establish
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`liability is deliberate indifference to the inmate's health or safety." Id. (internal quotation omitted).
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`9
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 10 of 13 PageID #: 397
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`In addition, negligence or even gross negligence is not sufficient to support a § 1983 claim. See
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`Huber v. Anderson, 909 F.3d 201, 208 (7th Cir. 2018).
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`The record shows that Robertson was subjected to cold showers and cold food in
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`segregation and that he could not physically attend law library or religious services. These
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`conditions do not constitute extreme deprivations that could be described as cruel and unusual.
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`While they may be harsher and more restrictive than conditions experienced in general population,
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`no juror could conclude that they are sufficiently serious to violate the Eighth Amendment.
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`Therefore, the defendants are entitled to summary judgment on this claim.
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`C. Deliberate Indifference Claim Against Brown
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`Robertson alleges that Brown was deliberately indifferent to his hand injury in violation of
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`his Eighth Amendment rights. Brown responded to Robertson's grievance appeal in June 2018 and
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`to Robertson's informal grievance in January 2019. The first response stated that Robertson could
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`submit a healthcare request form if his hand still hurt. Dkt. 54-4 at 2. The second response informed
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`Robertson that no medical provider had referred Robertson to an outside hand specialist and that
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`Robertson could submit a healthcare request if he was still experiencing issues with his hand.
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`Dkt. 17-1.
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`As noted above, Robertson's treatment and the conditions of his confinement are evaluated
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`under standards established by the Eighth Amendment's proscription against the imposition of
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`cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993) ("It is undisputed
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`that the treatment a prisoner receives in prison and the conditions under which he is confined are
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`subject to scrutiny under the Eighth Amendment.").
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`The Eighth Amendment "protects prisoners from prison conditions that cause the wanton
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`and unnecessary infliction of pain." Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014). "To
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`10
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 11 of 13 PageID #: 398
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`determine if the Eighth Amendment has been violated in the prison medical context, [the Court]
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`perform[s] a two-step analysis, first examining whether a plaintiff suffered from an objectively
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`serious medical condition, and then determining whether the individual defendant was deliberately
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`indifferent to that condition." Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016) (en banc).
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`"[D]eliberate indifference may be found where an official knows about unconstitutional
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`conduct and facilitates, approves, condones, or 'turn[s] a blind eye' to it." Perez v. Fenoglio, 792
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`F.3d 768, 781 (7th Cir. 2015) (quoting Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996)). An
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`inmate's correspondence to a prison official may provide sufficient knowledge of a constitutional
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`deprivation. Id. at 781-82. "[O]nce an official is alerted to an excessive risk to inmate safety or
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`health through [an inmate's] correspondence, refusal or declination to exercise the authority of his
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`or her office may reflect deliberate disregard." Id. at 782.
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`In contrast, if, upon learning of an inmate's complaints, a prison official reasonably
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`responds to those complaints, he lacks a "sufficiently culpable state of mind" to be deliberately
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`indifferent. See Johnson v. Doughty, 433 F.3d 1001, 1010-11 (7th Cir. 2006) (finding grievance
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`counselor did not violated the Eighth Amendment where he researched inmate's complaint, learned
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`that medical professionals had seen and diagnosed inmate with medical condition and determined
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`that surgery was not required).
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`Defendant Brown is entitled to summary judgment because the undisputed facts establish
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`that he reasonably responded to Robertson's grievance appeal in 2018 and informal grievance in
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`2019. Brown facilitated Robertson's access to healthcare by providing him with the appropriate
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`forms to request such care. No reasonable juror could conclude that Brown exhibited deliberate
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`indifference with respect to Robertson's grievances. See Johnson, 433 F.3d at 1010-11. Brown is
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`therefore entitled to summary judgment.
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`11
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 12 of 13 PageID #: 399
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`D. Qualified Immunity
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`The Court addressed the defendants' qualified immunity argument as to Robertson's
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`Fourteenth Amendment claim in Section III-A above. The Court does not address the defendants'
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`qualified immunity argument as to Robertson's Eighth Amendment claims because the Court found
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`that Robertson's Eighth Amendment rights had not been violated.
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`IV. Conclusion
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`The defendants' motion for summary judgment, dkt. [54], is granted as to Robertson's
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`Fourteenth Amendment claim against Brown and Davis, his Eighth Amendment deliberate
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`indifference claim against Brown, and his Eighth Amendment conditions of confinement claim
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`against all defendants. The motion is denied as to Robertson's Fourteenth Amendment due process
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`claim against defendants Snyder, Purcell, and Stroup.
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`The clerk is directed to terminate Brown and Davis as defendants on the docket because
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`all claims against them have been dismissed. No partial final judgment shall issue at this time.
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`If Robertson wishes to be represented by counsel for trial or any potential settlement
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`conference, but his efforts to secure representation have been unsuccessful, he may seek the Court's
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`assistance. Robertson shall have through September 29, 2021, in which to file a motion for
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`recruitment of counsel or notify the Court that he wishes to proceed pro se. The clerk is directed to
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`include the motion for counsel form with Robertson's copy of this Order.
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`IT IS SO ORDERED.
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`Date: 9/3/2021
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`12
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`Case 2:19-cv-00322-JRS-MG Document 64 Filed 09/03/21 Page 13 of 13 PageID #: 400
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`Distribution:
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`TIMOTHY WAYNE ROBERTSON
`943020
`MIAMI - CF
`MIAMI CORRECTIONAL FACILITY
`Inmate Mail/Parcels
`3038 West 850 South
`Bunker Hill, IN 46914-9810
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`Brandyn Lee Arnold
`INDIANA ATTORNEY GENERAL
`brandyn.arnold@atg.in.gov
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`Douglass R. Bitner
`KATZ KORIN CUNNINGHAM, P.C.
`dbitner@kkclegal.com
`
`Brandon Carothers
`INDIANA ATTORNEY GENERAL
`bcarothers@atg.in.gov
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`Mollie Ann Slinker
`INDIANA ATTORNEY GENERAL
`mollie.slinker@atg.in.gov
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`Samantha May Sumcad
`INDIANA ATTORNEY GENERAL
`samantha.sumcad@atg.in.gov
`
`Jarod M. Zimmerman
`KATZ KORIN CUNNINGHAM, P.C.
`jzimmerman@kkclegal.com
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`
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`13
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