Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 1 of 8 PageID #: 162
`
`v.
`
`
`DANIEL FAVELA,
`
`
`
`
`
`RICHARD BROWN,
`FRANK LITTLEJOHN,
`KEVIN GILMORE,
`JERRY SNYDER,
`CHARLES DUGAN,
`JERRICHA MEEKS,
`DAWN AMMERMAN,
`RANDALL PURCELL,
`TAMMY MARK,
`JOSHUA COLLINS,
`BEVERLY GILMORE,
`BRUCE LEMMON,
`ROBERT CARTER,
`JACK HENDRIX,
`MICHAEL OSBURN,
`SONYA PHIPPS,
`MATT LEOHR,
`ANDREA MASON,
`RANDY VANVLEET,
`TRAVIS DAVIS,
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
`
`No. 2:20-cv-00154-JRS-DLP
`
`Plaintiff,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`ORDER DENYING DEFENDANTS' PARTIAL MOTION TO DISMISS
`
`On March 20, 2020, plaintiff Daniel Favela filed this 42 U.S.C. § 1983 action alleging that
`
`his housing in solitary confinement at Wabash Valley Correctional Facility (WVCF) from
`
`approximately 2011 to November 2019 violated his Fourth, Fifth, Eighth, and/or Fourteenth
`
`Amendment rights. Dkt. 1; dkt. 17. Mr. Favela additionally brings state law tort claims against
`
`each of the defendants, a negligent training/supervision claim against some individual defendants
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 2 of 8 PageID #: 163
`
`who held supervisory roles, and a First Amendment retaliation claim against defendant
`
`investigators Vanvleet and Davis. Dkt. 17.
`
`
`
`The defendants have filed a partial motion to dismiss, alleging that any claims, both federal
`
`and state, based on alleged conduct that took place prior to March 20, 2018, should be dismissed
`
`because they are barred by the applicable two-year statute of limitations. Dkt. 19. Additionally,
`
`the defendants argue that all claims against Beverly Gilmore, Tammy Mark, Joshua Collins, and
`
`Bruce Lemmon should be dismissed as barred by the statute of limitations because their
`
`employment at WVCF and any actions the plaintiff alleges concerning these individuals predated
`
`March 20, 2018. Id.; dkt. 20.
`
`I. Legal Standard
`
`
`
`The defendants seek relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure, but
`
`"the appropriate vehicle for resolving an affirmative defense is a motion for judgment on the
`
`pleadings under Rule 12(c), not a Rule 12(b)(6) motion." Gunn v. Cont'l Cas. Co., 968 F.3d 802,
`
`806 (7th Cir. 2020); see also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
`
`Cir. 2012) (stating, "we have repeatedly cautioned that the proper heading for such motions is a
`
`Rule 12(c), since an affirmative defense is external to the complaint."); cf. Brooks v. Ross, 578
`
`F.3d 574, 579 (7th Cir. 2009) (example of pragmatic exception where complaint unambiguously
`
`set forth dates establishing statute-of-limitations defense). "Observing the distinction is necessary
`
`to allocate correctly the burdens of pleading and proof." H.A.L. N.Y. Holdings, LLC v. Guinan,
`
`958 F.3d 627, 632 (7th Cir. 2020). Accordingly, the Court construes the defendants' motion as one
`
`under Rule 12(c), and the defendants bear "the burden of showing that the allegations of the
`
`complaint and an answer showed that an affirmative defense conclusively" defeat Mr. Favela's
`
`older claims as a matter of law. Gunn, 968 F.3d at 807.
`
`
`
`2
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 3 of 8 PageID #: 164
`
`
`
`In considering the motion, Mr. Favela's factual allegations are accepted as true and given
`
`the benefit of all reasonable inferences. Orgone Capital III, LLC v. Daubenspeck, 912 F.3d 1039,
`
`1044 (7th Cir. 2019). The Court "may also take judicial notice of matters of public record and
`
`consider documents incorporated by reference in the pleadings." Id.
`
`II. Discussion
`
`
`
`Mr. Favela was placed in solitary confinement at WVCF from approximately 2011 to
`
`November 2019, a period of eight years. Dkt. 17 at 2. "The parties are in agreement that the 2 year
`
`statute of limitations applies to the Federal Claims brought pursuant to 42 U.S.C. § 1983." Dkt. 31
`
`at 1-2.
`
`
`
`"[I]n § 1983 actions, federal courts apply the statute of limitations governing personal
`
`injury actions in the state where the injury took place. In Indiana, such claims must be brought
`
`within two years." Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013) (citation omitted). The
`
`defendants argue that because the statute of limitations for federal claims is two years, any claims
`
`based on alleged actions occurring prior to March 20, 2018—two years prior to the filing of the
`
`complaint—are barred.
`
`
`
`Mr. Favela argues that the older claims are not barred because all claims were tolled under
`
`the doctrines of continuing harm/continuing violation and concealment. Dkt. 31 at 3. Mr. Favela
`
`also contends that the state law claims have a 5-year statute of limitations and "when there is a
`
`civil conspiracy, the statute of limitations begins running upon the last overt act of any tortfeasor,
`
`which means claims against Beverly Gilmore, Tammy Mark, Joshua Collins, and Bruce Lemmon
`
`are not barred by the statute of limitations." Id. at 1.
`
`
`
`3
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 4 of 8 PageID #: 165
`
`
`
`The Court will address the continuing harm/continuing violation doctrine as it pertains to
`
`Mr. Favela's federal and state claims, as the Court finds that the application of this doctrine is
`
`dispositive.
`
`
`
`As the Seventh Circuit recently explained,
`
`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.
`
`
`United States v. Spectrum Brands, 924 F.3d 337, 350 (7th Cir. 2019) (internal citations omitted).
`
`"A violation is continuing where it would be unreasonable to require or even permit [a prisoner]
`
`to sue separately over every incident of the defendant's unlawful conduct." Turley v. Rednour, 729
`
`F.3d 645, 651 (7th Cir. 2013). For a continuing harm, the statute of limitations begins to run on
`
`the last occurrence of the harm. Id. In Indiana, "[t]he doctrine of continuing wrong applies where
`
`an entire course of conduct combines to produce an injury . . . . When this doctrine attaches, the
`
`statutory limitations period begins to run at the end of the continuing wrongful act . . . . In order to
`
`apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was
`
`of a continuous nature." Johnson v. Blackwell, 885 N.E.2d 25, 31 (Ind. Ct. App. 2008) (citing
`
`Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005)), trans denied.
`
`
`
`Mr. Favela argues that the defendants' conduct spanned eight years and caused him to suffer
`
`various injuries that are the "culmination of a prolonged stay in solitary confinement," and the
`
`statute of limitations began to run in November of 2019 upon his release from solitary confinement.
`
`Dkt. 31 at 7. In his complaint, Mr. Favela alleges that during this eight-year period, his placement
`
`
`
`4
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 5 of 8 PageID #: 166
`
`was not meaningfully reviewed and to the extent that any reviews were done, these were pretextual
`
`and boilerplate and violated Due Process. Dkt. 17 at 2. He alleges that he was "subjected to
`
`prolonged continuous indefinite solitary confinement, which created a strong likelihood of
`
`physical and mental harm." Dkt. 1 at 11. The defendants argue that the plaintiff alleges in "464
`
`paragraphs" individual acts of the defendants in violation of his rights and "that his due process
`
`rights were violated by each of his monthly reviews" for each year spanning 2011 to 2019, and
`
`simply "grouping" these reviews together does not toll the statute of limitations. Dkt. 32 at 4-5.
`
`
`
`In Johnston v. Wetzel, a factually similar case involving a Pennsylvania inmate who alleged
`
`Fourteenth and Eighth Amendment violations due to his seventeen-year placement in solitary
`
`confinement, the district court held that the continuing violation doctrine applied to the plaintiff's
`
`claims because the plaintiff "has not alleged a series of distinct wrongs but rather he has claimed
`
`that Defendants' conduct is part of a continuing seventeen-year practice of unconstitutionally
`
`restricting him to solitary confinement." 431 F. Supp. 3d. 666, 676 (W.D. Penn. 2019).
`
`
`
`"The Supreme Court held in Hewitt [v. Helms, 459 U.S. 460 (1983)] that the Due Process
`
`Clause mandates that prison officials periodically review whether an inmate placed in
`
`administrative segregation continues to pose a threat." Isby v. Brown, 856 F.3d 508, 524 (7th Cir.
`
`2017). Inmates placed in solitary confinement are entitled to "an informal and nonadversary
`
`periodic review (the frequency of which is committed to the discretion of the prison officials) that
`
`keeps administrative segregation from becoming a pretext for indefinite confinement." Id. at 525
`
`(internal quotation omitted).
`
`
`
`The defendants point to National Railroad Passenger Corp. v. Morgan's "holding that a
`
`Title VII plaintiff could not recover for discrete discriminatory acts that occurred outside the
`
`relevant EEOC filing limitations" to support its argument that "[a]llegations of discrete injury do
`
`
`
`5
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 6 of 8 PageID #: 167
`
`not trigger the continuing violation doctrine." 536 U.S. 101, 122 St. Ct. (2002); see also dkt. 32 at
`
`5. The defendants also 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 would limit most of its discussion
`
`to the review procedures that were in place in the two-year period proceeding the filing of the suit
`
`in light of the statute of limitations. Dkt. 32 at 5. However, whether the continuing violation
`
`doctrine applied to Mr. Isby's case was not argued to the Court.
`
`
`
`Furthermore, in National Railroad, "[d]iscrete acts such as termination, failure to promote,
`
`denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each
`
`retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment
`
`practice.'" 536 U.S. at 114. The allegations related to a hostile work environment were different
`
`because "[t]heir very nature involves repeated conduct . . . . The 'unlawful employment practice'
`
`therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps
`
`years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on
`
`its own." Id. at 115. Accordingly, "[p]rovided that an act contributing to the claim occurs within
`
`the filing period, the entire time period of the hostile environment may be considered by a court
`
`for the purposes of determining liability." Id. at 117.
`
`
`
`The Court finds the defendants' interpretation of Mr. Favela's claims too narrow. First, the
`
`defendants' argument requires the conclusion that the Constitution guarantees Mr. Favela a
`
`meaningful review every month such that he should have filed a federal lawsuit each time he
`
`received a perfunctory review. However, the frequency of the required review has not been
`
`established in this case. If there is no constitutional requirement for monthly review, it would be
`
`unreasonable to require Mr. Favela to sue after each monthly review, even if such review was a
`
`sham. Turley, 729 F.3d at 651. Second, Mr. Favela is arguing that the defendants failed to afford
`
`
`
`6
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 7 of 8 PageID #: 168
`
`him due process over the course of an eight-year period and cites to the 30-day automatic reviews
`
`that included uninformative boilerplate language and all other reviews (90-day or annual) which
`
`he contends included the same as evidence that he was not receiving meaningful review over this
`
`prolonged time period. Accordingly, as the Court cannot determine that each monthly review was
`
`actionable on the pleadings alone, and Mr. Favela alleges that his due process rights were
`
`continuously violated over the course of eight years, the defendants have not met their burden that
`
`Mr. Favela's due process claims for acts prior to March 20, 2018, are barred by the statute of
`
`limitations.
`
`
`
`Further, Mr. Favela's conditions of confinement claims are similar to the hostile work
`
`environment claim described in National Railroad in that a single occurrence of an unsuitable
`
`condition in his cell would not even be actionable on its own. Whether prolonged confinement
`
`constitutes an Eighth Amendment violation depends both "'on the duration and nature of the
`
`segregation.'" Isby, 856 F.3d at 521 (quoting Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650,
`
`666 (7th Cir. 2012)). Accordingly, Mr. Favela's Eighth Amendment claims fall within the
`
`continuing violation doctrine and are not barred by the statue of limitations.
`
`
`
`Because the Court has determined that the continuing wrong doctrine applies to Mr.
`
`Favela's federal and state claims, it need not address the doctrine of concealment or resolve any
`
`dispute between the parties regarding a two-year or five-year applicable statute of limitations for
`
`Indiana tort claims.
`
`III. Conclusion
`
`For the foregoing reasons, the defendants' partial motion to dismiss, dkt. [19], which the
`
`
`
`Court construes as a motion for partial judgment on the pleadings under Federal Rule 12(c), is
`
`denied. Previously the Court had stayed the deadline for defendants to answer the plaintiff's
`
`
`
`7
`
`

`

`Case 2:20-cv-00154-JRS-DLP Document 33 Filed 11/20/20 Page 8 of 8 PageID #: 169
`
`complaint. Dkt. 23. The defendants now must serve their answer on the plaintiff within fourteen
`
`days of this Order. See Fed. R. Civ. P. 12(a)(4)(A).
`
`
`
`
`
`
`
`IT IS SO ORDERED.
`
`Date: 11/20/2020
`
`
`
`
`
`
`Distribution:
`
`Jeffrey R. Cardella
`LAW OFFICE OF JEFF CARDELLA LLC
`jeffcardella@cardellalawoffice.com
`
`Kyle Christie
`CHRISTIE FARRELL LEE & BELL, P.C.
`kyle@cflblaw.com
`
`David C. Dickmeyer
`INDIANA ATTORNEY GENERAL
`David.Dickmeyer@atg.in.gov
`
`Sarah Jean Shores
`INDIANA OFFICE OF THE ATTORNEY GENERAL
`sarah.shores@atg.in.gov
`
`Margo Tucker
`INDIANA ATTORNEY GENERAL
`margo.tucker@atg.in.gov
`
`
`
`
`8
`
`