Case 2:20-cv-00062-JMS-DLP Document 17 Filed 09/10/20 Page 1 of 6 PageID #: 97
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`Plaintiff,
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`v.
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`Defendants.
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`No. 2:20-cv-00062-JMS-DLP
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`CARLTON WRIGHT,
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`JAMES WYNN, et al.
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`Order Denying Defendants' Partial Motion to Dismiss
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`On February 4, 2020, plaintiff Carlton Wright filed this 42 U.S.C. § 1983 action alleging
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`that his housing in administrative segregation at Wabash Valley Correctional Facility (WVCF)
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`between March 23, 2012, and March of 2019 violated his Eighth and Fourteenth Amendment
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`rights. The defendants have filed a partial motion to dismiss, alleging that any claims based on
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`alleged conduct that took place prior to February 3, 2018, should be dismissed because they are
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`barred by the applicable statute of limitations.
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`I.
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`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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`1
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`Case 2:20-cv-00062-JMS-DLP Document 17 Filed 09/10/20 Page 2 of 6 PageID #: 98
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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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`complaint and an answer showed that an affirmative defense conclusively" defeat Mr. Wright'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. Wright'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). The Court "may also take judicial notice of matters of public record and
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`consider documents incorporated by reference in the pleadings." Id.
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`II.
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`Discussion
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`Mr. Wright was placed on administrative segregation in WVCF from about March 23,
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`2012, through early March 2019, a period of approximately seven years.
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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). The
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`defendants argue that because the statute of limitations for federal claims is two years, any claims
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`based on alleged actions occurring prior to February 3, 2018—two years prior to the filing of the
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`complaint—are barred.
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`Mr. Wright argues that the older claims are not barred due to the doctrine of continuing
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`harm/continuing violation. 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
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`2
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`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. Wright relies on Johnston v. Wetzel, a factually similar case involving a Pennsylvania
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`inmate who alleged Fourteenth Amendment and Eighth Amendment violations due to his
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`seventeen-year confinement in solitary confinement. 431 F. Supp. 3d. 666 (W.D. Penn. 2019). The
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`district court held that the continuing violation doctrine applied to Mr. Johnston's claims, because
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`"Johnston has not alleged a series of distinct wrongs but rather he has claimed that Defendants'
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`conduct is part of a continuing seventeen-year practice of unconstitutionally restricting him to
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`solitary confinement." Id. at 676.
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`Mr. Wright raises due process and Eighth Amendment claims. The statute of limitations
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`for each claim will be discussed separately.
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`A. Due Process Claim
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`Mr. Wright alleges that the defendants violated his due process rights by keeping him
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`continuously housed in solitary confinement for nearly seven years without providing meaningful
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`review. "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). Inmates placed in solitary confinement are entitled to "an informal and nonadversary
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`3
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`periodic review (the frequency of which is committed to the discretion of the prison officials) that
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`keeps administrative segregation from becoming a pretext for indefinite confinement." Id. at 525
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`(internal quotation omitted).
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`The defendants argue that the continuing violation doctrine does not apply to the
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`Fourteenth Amendment due process claim. They rely on Mr. Wright's allegation in his complaint
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`that the defendants' 30-day reviews of his placement in segregation were not meaningful. Dkt. 16
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`at 2–3, citing dkt. 1 at ¶ 6. The defendants argue that "each non-meaningful review was a separate
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`and individual 'wrong' that allegedly deprived Plaintiff of his right to due process." Dkt. 16 at 2,
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`citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
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`In National Railroad, the Supreme Court discussed the circumstances in which a plaintiff
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`alleging employment discrimination under Title VII of the Civil Rights Act could file suit based
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`on events that fall outside the relevant statutory time period. Id. at 105. The Court first held that a
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`suit must be brought within the applicable limitation period for each "discrete discriminatory act."
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`Id. at 114–15. It reasoned "[d]iscrete acts such as termination, failure to promote, denial of transfer,
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`or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse
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`employment decision constitutes a separate actionable 'unlawful employment practice.'" Id. at 114.
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`However, allegations related to a hostile work environment were different because "[t]heir very
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`nature involves repeated conduct. …The 'unlawful employment practice' therefore cannot be said
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`to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast
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`to discrete acts, a single act of harassment may not be actionable on its own." Id. at 115.
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`Accordingly, "[p]rovided that an act contributing to the claim occurs within the filing period, the
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`entire time period of the hostile environment may be considered by a court for the purposes of
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`determining liability." Id. at 117.
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`4
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`The defendants suggest that the continuing violation doctrine does not apply because each
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`allegedly perfunctory 30-day review constituted an actionable wrong, similar to the discriminatory
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`acts in National Railroad such as a failure to promote or refusal to hire. But the Court finds this
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`interpretation of Mr. Wright's claims to be too narrow. First, the defendants argument requires the
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`conclusion that the Constitution guarantees Mr. Wright a meaningful review every thirty days such
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`that he should have filed a federal lawsuit each time he received a perfunctory review. However,
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`the frequency of the required review has not been established in this case. If there is no
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`constitutional requirement for a thirty-day review, it would be unreasonable to require Mr. Wright
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`to sue after each thirty-day review, even if such review was a sham. Turley, 729 F.3d at 651.
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`Second, Mr. Wright is arguing that the defendants failed to afford him due process over the course
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`of a seven-year period and cites to the 30-days reviews as evidence that he was not receiving
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`meaningful review over this time period. Accordingly, as the Court cannot determine that each 30-
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`day review was actionable on the pleadings alone, and Mr. Wright alleges that his due process
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`rights were continuously violated over the course of seven years, the defendants have not met their
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`burden that Mr. Wright's due process claims for acts prior to February 3, 2018, are barred by the
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`statute of limitations.
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`B. Eighth Amendment Claim
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`Next, the defendants argue that Mr. Wright's Eighth Amendment conditions-of-
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`confinement claim are subject to the two-year statute of limitations. They do not argue that this
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`type of claim does not fall within the continuing violation doctrine.1 Rather, they state—without
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`1 The defendants rely on a footnote in this Court's 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. However, whether the continuing violation doctrine
`applied to Mr. Isby's case was not argued to the Court.
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`citation to any case law—that Mr. Wright "was not required, nor should he be encouraged, to wait
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`in silence in allegedly inhumane conditions for the duration of a custody period he believes is
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`unconstitutional." Dkt. 16 at 3.
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` Mr. Wright's Eighth Amendment conditions-of-confinement claims are similar to the
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`hostile work environment claim described in National Railroad in that a single occurrence of an
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`unsuitable condition in his cell would not even be actionable on its own. Whether prolonged
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`confinement constitutes an Eighth Amendment violation depends both "on the duration and the
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`nature of the segregation." Isby, 856 F.3d at 521 (quoting Rice ex rel. Rice v. Corr. Med. Servs.,
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`675 F.3d 650, 666 (7th Cir. 2012)). Accordingly, Mr. Wright's Eighth Amendment claims fall
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`within the continuing violation doctrine and are not barred by the statute of limitations.
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`III. Conclusion
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`For the foregoing reasons, the defendants' partial motion to dismiss, dkt. [12], which the
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`Court construes as a motion for partial judgment on the pleadings under Federal Rule 12(c), is
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`denied.
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`IT IS SO ORDERED.
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`Distribution:
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`Marley Genele Hancock
`INDIANA ATTORNEY GENERAL
`marley.hancock@atg.in.gov
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`Christopher Carson Myers
`CHRISTOPHER C. MYERS & ASSOCIATES
`cmyers@myers-law.com
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`6
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`Date: 9/10/2020
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