Case 2:20-cv-00657-JPH-DLP Document 13 Filed 05/25/21 Page 1 of 8 PageID #: 50
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`ROBERT SHORTER,
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`Plaintiff,
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`v.
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`JACK HENDRIX Executive Director of
`Classification; et al.,
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`No. 2:20-cv-00657-JPH-DLP
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`Defendants.
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`Order Screening Amended Complaint, Dismissing Insufficient Claims, and
`Directing Issuance of Process
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`Plaintiff, Robert Shorter, at all times an inmate in the Indiana Department of Correction
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`("IDOC"), filed this action pursuant to 42 U.S.C. § 1983. Because Mr. Shorter is a "prisoner" as
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`defined by 28 U.S.C. § 1915A(c), this Court has an obligation under 28 U.S.C. § 1915A(a)
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`to screen his complaint before service on the defendants. Before the Court screened his original
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`complaint, Mr. Shorter filed a motion to amend. Dkt. 9. The Court granted the motion and directed
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`Mr. Shorter to file an amended complaint with all claims against all defendants. Dkt. 11. The
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`amended complaint, dkt. 12, is now subject to screening.
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`Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the amended complaint, or any
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`I. Screening Standard
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`portion of the amended complaint, if it is frivolous or malicious, fails to state a claim for relief, or
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`seeks monetary relief against a defendant who is immune from such relief. In determining whether
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`the amended complaint states a claim, the Court applies the same standard as when addressing a
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`motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
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`714, 720 (7th Cir. 2017). For the complaint to survive dismissal, it "must contain sufficient factual
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`1
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`matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009). Pro se complaints are construed liberally and held to a less stringent standard than
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`formal pleadings drafted by lawyers. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal
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`quotation omitted).
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`II. The Amended Complaint
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`At relevant times, Mr. Shorter was incarcerated at Wabash Valley Correctional Facility
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`("WVCF"), Pendleton Correctional Facility ("PCF"), and New Castle Correctional Facility
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`("NCCF"). He names twelve defendants in his amended complaint: (1) Charles Dugan, Case
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`Worker at WVCF; (2) Beverly Gilmore, Case Worker at WVCF; (3) Jerry Snyder, Unit Team
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`Manager at WVCF; (4) Richard Brown, WVCF Warden (former); (5) Frank Vanihel, WVCF
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`Warden (current), (6) Dushan Zatecky, PCF Warden; (7) John Stafford, Unit Team Manager at
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`PCF; (8) Mr. Arnold, Case Worker at PCF; (9) Mr. Cook, Case Worker at PCF; (10) Ms. Brown,
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`Case Worker at PCF; (11) Robert Carter, IDOC Commissioner; and (12) Jack Hendrix, Executive
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`Director of Classification at IDOC. Mr. Shorter seeks compensatory and punitive damages.
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` According to the amended complaint, Mr. Shorter has been held in segregation without
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`proper review since 2012 (with only a short break from segregation) at three different facilities.
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`Mr. Shorter alleges that in segregation, he is confined to a small cell for 23 hours a day and allowed
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`outdoor recreation for one hour a day alone. Whenever he leaves his cell, he has his hands cuffed
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`behind his back and his legs shackled. He can only shower three times a week. All meals are eaten
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`alone. A security light remains on 24 hours a day, disturbing his sleep. He is allowed no physical
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`contact or socialization with his family or friends.
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`2
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`Inmates in solitary confinement are entitled to a periodic review to determine if the reason
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`for segregation still exists. Mr. Shorter alleges that at each institution, he has received nothing but
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`perfunctory 30-day reviews, only learning about them after the fact when he receives a copy of the
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`form in the mail.
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`Mr. Hendrix, as executive director of classification for IDOC, is responsible for ensuring
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`that IDOC personnel are complying with policies related to classification. Similarly, Robert Carter,
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`as Commissioner, creates policies and rules for IDOC. Mr. Shorter alleges that I.C. § 11-10-1-
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`7(b)1 violates the Constitution.
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`January 2012 – July 2014: Wabash Valley Correctional Facility
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`Mr. Shorter was placed in administrative segregation at WVCF on or about January 24,
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`2012 until July 26, 2014. 2 During this time, Ms. Gilmore, Mr. Snyder, and Warden Brown failed
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`to provide Mr. Shorter meaningful periodic review to determine if Mr. Shorter should remain in
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`segregation.
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`February 2016 – February 2020: Pendleton Correctional Facility
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`In February 2016, Mr. Shorter was transferred to PCF without any notification or
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`information about how he could appeal the transfer.
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`From February 2, 2016, through February 19, 2020, PCF officials Warden Zatecky,
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`Mr. Stafford, Mr. Arnold, Mr. Cook, and Ms. Brown failed to provide Mr. Shorter meaningful
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`periodic review to determine if Mr. Shorter should remain in segregation.
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`1 Section (b) of the statute, which governs inmates involuntarily placed in segregation, provides: "The
`department shall review an offender so segregated at least once every thirty (30) days to determine whether
`the reason for segregation still exists." I.C. § 11-10-1-7(b).
`2 In Mr. Shorter's prior complaint and motion to amend, he stated that he was released to general population
`on July 24, 2014, before being placed back in segregation from December 2014 until his transfer to PCF in
`February 2016. Dkt. 2 at 4; dkt. 9 at 2–3. Because all claims from this time period are barred by the statute
`of limitations, the Court need not ask Mr. Shorter whether he wants to amend his complaint again to
`reintroduce allegations from his second stint in segregation at WVCF.
`3
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`February 2020 – October 2020: New Castle Correctional Facility
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`On February 19, 2020, Mr. Shorter was transferred to NCCF to participate in the STAND
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`Program, which helps inmates transition from solitary confinement to general population.
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`Mr. Shorter is a Hebrew Israelite. He was issued a conduct report for wearing a COVID-19 face
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`mask with a Star of David because it was alleged to be a gang symbol.3 As a result of the conduct
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`report, staff at NCCF reviewed Mr. Shorter's internal affairs prison record and placed him back in
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`segregation on April 29, 2020, pending transfer to long-term segregation due to "safety and
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`security reasons." Dkt. 12 at 7. Mr. Shorter alleges that the decision to place him in segregation
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`was rooted in his past conduct violation for a Class A-100 homicide at WVCF in 2014, rather than
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`current conduct. From April 24, 2020, through October 28, 2020, Mr. Shorter was denied
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`meaningful review of his placement in restrictive housing.
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`Mr. Hendrix approved Mr. Shorter's transfer back to department-wide long-term
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`segregation based on Mr. Shorter's 2014 conduct report and other old conduct reports.
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`October 2020 – Present: Wabash Valley Correctional Facility
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`Upon his return to WVCF and placement in segregation, Mr. Shorter asked Mr. Snyder
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`why he was considered a security threat. Mr. Snyder responded, "Central Office approved the
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`assignment. The conduct history refers to overall DOC conduct, which includes an offender
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`homicide. That qualifies you as a security threat." Dkt. 12 at 8.
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`Since his return to WVCF, Mr. Shorter has been denied his right to appeal his 30-day
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`reviews and has not received any meaningful reviews.
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`Warden Vanihel, the current warden at WVCF, has failed to ensure that meaningful
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`reviews are taking place.
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`3 This is the subject of another pending civil rights suit in this Court. Shorter v. Dunn, No. 1:20-cv-02824-
`JRS-TAB.
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`4
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`III. Discussion
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`The claims based on Mr. Shorter's placement in solitary confinement at WVCF from 2012
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`to 2014 are barred by the statute of limitations. Suits under § 1983 use the statute of limitations
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`and tolling rules that states employ for personal-injury claims. In Indiana, the applicable statute of
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`limitations period is two years. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Ind.
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`Code § 34–11–2–4. Mr. Shorter's claims accrued against nearly all the WVCF defendants by no
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`later than July 26, 2014, when he was temporarily released from segregation at WVCF, or February
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`2, 2016,4 when he was transferred from WVCF to PCF. Mr. Shorter's complaint was signed on
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`November 30, 2020, more than two years after the expiration of Indiana's 2-year statute of
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`limitations.
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`The Court construes Mr. Shorter's amended complaint as asserting that the entire period of
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`segregation was a continuing harm for which the limitations period would begin only upon his
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`release from segregation. See Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013) (statute of
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`limitation for a continuing harm begins to run on the last occurrence of the harm). If Mr. Shorter
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`had remained in the same facility for the entire period, the continuing harm doctrine might have
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`allowed him to bring his claims for the entire period. But when Mr. Shorter was transferred from
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`WVCF to PCF, the WVCF defendants were no longer capable of stopping the harm, and at least
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`as to them, the harm no longer continued. Wilson v. Wexford Health Sources, Inc., 932 F.3d 513,
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`517–18 (7th Cir. 2019). "[D]ismissal under Rule 12(b)(6) on the basis of a limitations defense may
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`be appropriate when the plaintiff effectively pleads [himself] out of court by alleging facts that are
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`sufficient to establish the defense." Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006)
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`4 As discussed above, Mr. Shorter previously included allegations about his second period in segregation
`at WVCF from December 2014 until his transfer to PCF in February 2016. Whether he intentionally or
`accidentally omitted the allegations from his amended complaint is of no moment, since they, too, would
`be barred by the statute of limitations.
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`5
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`(internal citations omitted); see also Koch v. Gregory, 536 Fed. Appx. 659 (7th Cir. 2013) (stating
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`that when the language of the complaint plainly shows that the statute of limitations bars the suit,
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`dismissal under § 1915A is appropriate). Accordingly, any claim arising out of Mr. Shorter's time
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`in segregation at WVCF from 2012 to 2016 is dismissed as untimely, and Warden Richard Brown
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`and Beverly Gilmore are dismissed as defendants. Mr. Snyder remains as a defendant because,
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`liberally construing the amended complaint, Mr. Shorter alleges that Mr. Snyder has failed to
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`provide meaningful review of Mr. Shorter's placement since Mr. Shorter's return to WVCF in
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`October 2020.
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`Any claim against case worker Charles Dugan is dismissed for failure to state a claim
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`upon which relief can be granted. A defendant can only be liable for the actions or omissions in
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`which he personally participated. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017).
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`There are no allegations against Mr. Dugan in the body of the amended complaint. But assuming
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`Mr. Dugan was a caseworker at WVCF from 2012 to 2016, any claim against him would also be
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`dismissed as being barred by the statute of limitations.
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`This action shall proceed with Fourteenth Amendment due process and Eighth
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`Amendment conditions-of-confinement claims against the following defendants in their individual
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`capacities only: (1) Dushan Zatecky, PCF Warden; (2) John Stafford, Unit Team Manager at PCF;
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`(3) Mr. Arnold, Case Worker at PCF; (4) Mr. Cook, Case Worker at PCF; (5) Ms. Brown, Case
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`Worker at PCF; (6) Jerry Snyder, Unit Team Manager at WVCF; (7) Jack Hendrix, Executive
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`Director of Classification at IDOC; (8) Warden Vanihel; and (9) Robert Carter, IDOC
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`Commissioner. See Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000) ("Where the plaintiff seeks
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`injunctive relief from official policies or customs, the defendant has been sued in her official
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`6
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`Case 2:20-cv-00657-JPH-DLP Document 13 Filed 05/25/21 Page 7 of 8 PageID #: 56
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`capacity; where the plaintiff alleges tortious conduct of an individual acting under color of state
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`law, the defendant has been sued in her individual capacity.").
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`This summary includes all the viable claims identified by the Court. If Mr. Shorter believes
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`that additional claims were alleged in the complaint, but not identified by the Court, he shall have
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`through June 18, 2021, in which to identify those claims.
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`IV. Service of Process
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`The clerk is directed to terminate Warden Richard Brown, Deputy Warden Frank
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`Littlejohn, and Randall Parcell as defendants on the docket and to add Warden Vanihel and Robert
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`Carter, IDOC Commissioner, as defendants.
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`Further, the clerk is directed pursuant to Federal Rule of Civil Procedure 4(c)(3) to issue
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`process to defendants (1) Dushan Zatecky, PCF Warden; (2) John Stafford, Unit Team Manager
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`at PCF; (3) Mr. Arnold, Case Worker at PCF; (4) Mr. Cook, Case Worker at PCF; (5) Ms. Brown,
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`Case Worker at PCF; (6) Jerry Snyder, Unit Team Manager at WVCF; (7) Jack Hendrix, Executive
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`Director of Classification at IDOC; (8) Warden Vanihel; and (9) Robert Carter, IDOC
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`Commissioner. Process shall consist of the amended complaint, dkt. [12], applicable forms (Notice
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`of Lawsuit and Request for Waiver of Service of Summons and Waiver of service of Summons),
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`and this Order.
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`SO ORDERED.
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`7
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`Date: 5/25/2021
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`Case 2:20-cv-00657-JPH-DLP Document 13 Filed 05/25/21 Page 8 of 8 PageID #: 57
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`Distribution:
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`ROBERT SHORTER
`108402
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`Electronic Service Participant – Court Only
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`Electronic Service to IDOC Employees—
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` at Pendleton Correctional Facility:
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`Dushan Zatecky, PCF Warden
`John Stafford, Unit Team Manager
`Mr. Arnold, Case Worker
`Mr. Cook, Case Worker
`Ms. Brown, Case Worker
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`at Wabash Valley Correctional Facility:
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`Jerry Snyder, Unit Team Manager
`Warden Vanihel
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`at IDOC Central Office:
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`Robert Carter, Commissioner
`Jack Hendrix, Executive Director of Classification
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`8
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