Case 2:20-cv-00386-JPH-MJD Document 9 Filed 09/29/20 Page 1 of 5 PageID #: 33
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`No. 2:20-cv-00386-JPH-MJD
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`ANGUS JAMES TONEY,
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`Plaintiff,
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`v.
`RICHARD BROWN Former Superintendent
`at Wabash Valley Correctional Facility, et al.
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`Defendants.
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`Order Screening Complaint, Dismissing Insufficient Claims, and
`Directing Service of Process
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`Plaintiff Angus Toney, an inmate at Wabash Valley Correctional Facility ("WVCF"),
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`filed this action pursuant to 42 U.S.C. § 1983. Because Mr. Toney is a "prisoner" as defined by
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`28 U.S.C. § 1915A(c), this Court has an obligation under 28 U.S.C. § 1915A(a) to screen his
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`complaint before service on the defendants.
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`I. Screening Standard
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`Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint, or any portion
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`of the complaint, if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary
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`relief against a defendant who is immune from such relief. In determining whether the complaint
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`states a claim, the Court applies the same standard as when addressing a motion to dismiss under
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`Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).
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`To survive dismissal,
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`[the] complaint must contain sufficient factual matter, accepted as true, to state a
`claim for relief that is plausible on its face. A claim has facial plausibility when
`the plaintiff pleads factual content that allows the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.
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`1
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`Case 2:20-cv-00386-JPH-MJD Document 9 Filed 09/29/20 Page 2 of 5 PageID #: 34
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints are construed liberally and held to
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`a less stringent standard than formal pleadings drafted by lawyers. Perez v. Fenoglio, 792 F.3d
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`768, 776 (7th Cir. 2015) (internal quotation omitted).
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`II. The Complaint
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`The complaint names eighteen defendants: (1) Richard Brown; (2) Kevin Gilmore; (3)
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`Michael Osborn; (4) Frank Littlejohn; (5) Jerry Snyder; (6) Randall Purcell; (7) Charles Dugan;
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`(8) Joshua Collins; (9) Matt Leohr; (10) Bruce Lemmon; (11) Robert Carter; (12) Jack Hendrix;
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`(13) Jordeana Raney; (14) Randy VanVleet; (15) Robbie Marshall; (16) Travis Davis;
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`(17) Andrea Stroup; and (18) Dusty Russell. Mr. Toney seeks compensatory and punitive
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`damages.
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`According to his complaint, Mr. Toney was held in solitary confinement at WVCF from
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`November 7, 2014, to January 22, 2019, i.e. four years and two-and-a-half months. During that
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`time, Mr. Toney alleges that he was not afforded meaningful review to determine whether he
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`should remain in solitary confinement.
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`Mr. Toney further alleges that the conditions in solitary confinement were cruel and
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`unusual. He states he was confined to his cell for 23 hours a day and constantly exposed to loud
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`noises. During the winter, he was forced to take cold showers and would be locked in the cold
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`shower area for prolonged periods. When out of his cell, he was handcuffed, shackled, and
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`walked on a leash. Mr. Toney also alleges that prison staff failed to protect him from other
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`inmates in solitary who threw bodily waste that would land on him. Mr. Toney believes that his
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`prolonged confinement worsened his chronic back pain and caused anxiety, stress, and ocular
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`muscle atrophy.
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`2
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`Case 2:20-cv-00386-JPH-MJD Document 9 Filed 09/29/20 Page 3 of 5 PageID #: 35
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`Mr. Toney believes that commissioners Lemmon and Carter, regional director Osborn,
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`and director of classification Hendrix are responsible for his injuries because they promulgated
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`policies and supervised employees with respect to offender classification and placement.
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`Mr. Toney believes that the defendants employed at WVCF (defendants Brown, Kevin
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`Gilmore, Littlejohn, Snyder, Beverly Gilmore, Purcell, Dugan, Collins, Leohr, Raney, VanVleet,
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`Marshall, Davis, Stroup, and Russell) are responsible for his injuries because they denied
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`meaningful review, completed pro forma reviews, or failed to ensure that proper reviews were
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`taking place. Mr. Toney believes these defendants were deliberately indifferent to his conditions
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`of confinement in segregation and failed to intervene to improve those conditions.
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`III. Discussion of Claims
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`Mr. Toney's Eighth Amendment conditions-of-confinement claims and Fourteenth
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`Amendment due process claims shall proceed as submitted against all defendants with the
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`exception of Bruce Lemmon.
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`According to his complaint, Bruce Lemmon was the Commissioner of the Indiana
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`Department of Correction ("IDOC") from January 17, 2011, to November 30, 2016. Any claims
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`against Mr. Lemmon are barred by the statute of limitations. Suits under § 1983 use the statute of
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`limitations and tolling rules that states employ for personal-injury claims. In Indiana, the
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`applicable statute of limitations period is two years. See Richards v. Mitcheff, 696 F.3d 635, 637
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`(7th Cir. 2012); Ind. Code § 34-11-2-4. Mr. Toney's complaint was filed on July 27, 2020.
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`Mr. Toney's claims against Mr. Lemmon accrued on November 30, 2016, when Mr. Lemmon
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`left IDOC employment. See Wilson v. Wexford Health Sources, 932 F.3d 513, 518 (7th Cir.
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`2019) (noting—even if a claim is based on a continuing violation—once a defendant leaves the
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`institution, he no longer has the power to affect the plaintiff's situation, and "[t]he date of the
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`3
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`defendant's departure thus marks the last possible time when the claim might have accrued.").
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`Because Mr. Toney's complaint was filed more than two years after Mr. Lemmon's departure
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`from IDOC, all claims against Mr. Lemmon are dismissed.
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`This summary of claims includes all the viable claims identified by the Court. If
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`Mr. Toney believes that additional claims were alleged in the complaint, but not identified by the
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`Court, he shall have through October 23, 2020, in which to identify those claims.
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`IV. Service of Process
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`The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants
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`(1) Richard Brown; (2) Kevin Gilmore; (3) Michael Osborn; (4) Frank Littlejohn; (5) Jerry
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`Snyder; (6) Randall Purcell; (7) Charles Dugan; (8) Joshua Collins; (9) Matt Leohr; (10) Robert
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`Carter; (11) Jack Hendrix; (12) Jordeana Raney; (13) Randy VanVleet; (14) Robbie Marshall;
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`(15) Travis Davis; (16) Andrea Stroup; and (17) Dusty Russell in the manner specified by Rule
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`4(d). Process shall consist of the complaint, dkt. [2], applicable forms (Notice of Lawsuit and
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`Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Order.
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`The clerk is directed to terminate defendant Bruce Lemmon from the docket.
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`SO ORDERED.
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`4
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`Date: 9/29/2020
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`Case 2:20-cv-00386-JPH-MJD Document 9 Filed 09/29/20 Page 5 of 5 PageID #: 37
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`Distribution:
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`ANGUS JAMES TONEY
`162450
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`Electronic Service Participant – Court Only
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`Electronic Service to IDOC employees at Wabash Valley Correctional Facility:
`Richard Brown;
`Kevin Gilmore;
`Michael Osborn;
`Frank Littlejohn;
`Jerry Snyder;
`Randall Purcell;
`Charles Dugan;
`Joshua Collins;
`Matt Leohr;
`Robert Carter;
`Jack Hendrix;
`Jordeana Raney;
`Randy VanVleet;
`Robbie Marshall;
`Travis Davis;
`Andrea Stroup; and
`Dusty Russell
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`5
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