Case 2:20-cv-00657-JPH-DLP Document 41 Filed 09/21/21 Page 1 of 5 PageID #: 298
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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; is being sued in his official and
`individual capacity., et al.,
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`Defendants.
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`No. 2:20-cv-00657-JPH-DLP
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`Order Denying Motion to Reconsider and
`Motions to Proceed In Forma Pauperis on Appeal
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`Plaintiff Robert Shorter alleges that the defendants violated his Eighth and Fourteenth
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`Amendment rights due to his continued placement in segregation in the Indiana Department of
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`Correction from January 2012 through present.
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`Mr. Shorter again challenges the Court's dismissal of some claims based on the statute of
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`limitations. For the following reasons, his motion to reconsider, dkt. [24], is denied, and his
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`motions to proceed on appeal in forma pauperis, dkt. [28] and dkt. [38], are denied.
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`I.
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`Background
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`According to his amended complaint, Mr. Shorter was held in solitary confinement at
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`Wabash Valley Correctional Facility (WVCF) from January 2012 to February 2016, at Pendleton
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`Correctional Facility from February 2016 to February 2020, at New Castle Correctional Facility
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`from April 2020 through October 2020, and again at WVCF from October 2020 through present.
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`The Court screened Mr. Shorter's amended complaint and dismissed claims involving
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`Mr. Shorter's incarceration in segregation at WVCF from 2012 to 2016 as being barred by the
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`statute of limitations. Dkt. 13 at 3, n.2, 5. As noted in the Screening Order, the applicable statute
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`of limitations 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. The Court construed the amended complaint as asserting that the entire
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`period of segregation was a continuing harm for which the limitations period would begin only
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`upon Mr. Shorter's release from segregation. See Turley v. Rednour, 729 F.3d 645, 651 (7th Cir.
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`2013) (statute of limitation for a continuing harm begins to run on the last occurrence of the
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`harm). Thus, if Mr. Shorter had remained in the same facility for the entire period, the continuing
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`harm doctrine might have allowed him to bring his claims for the entire period. But when
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`Mr. Shorter was transferred from WVCF to PCF, any harm that the WVCF defendants were
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`alleged to have caused ended. Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 517–18
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`(7th Cir. 2019) (observing that doctor's resignation triggered accrual date because his
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`"involvement in the alleged wrong [was] over" after his departure from the institution). This
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`means the statute of limitations on the 2012−2016 period expired in 2018, and claims for that
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`timeframe were barred.
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`Mr. Shorter moved to reconsider the dismissal of those claims, arguing that none of them
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`accrued until July 2020 when his cellmate informed him of Isby v. Wynn, 2:12-cv-116-JMS-MJD
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`(S.D. Ind.). Dkt. 16. A claim under 42 U.S.C. § 1983 "accrues when the plaintiff knows or
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`should know that his or her constitutional rights have been violated." Logan v. Wilkins, 644 F.3d
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`577, 581–82 (7th Cir. 2011). The Court construed Mr. Shorter's argument as relying on the
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`doctrine of fraudulent concealment. In Indiana the doctrine of fraudulent concealment creates an
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`equitable exception to the statute of limitations defense if the defendants concealed material facts
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`that prevented the plaintiff from discovering a potential cause of action. Id. at 582. "To
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`successfully invoke the fraudulent concealment and toll the statute of limitations, a plaintiff must
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`2
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`establish that the concealment or fraud was of such a character to prevent inquiry, elude
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`investigation, or to mislead the plaintiff." Id.
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`The Court denied Mr. Shorter's motion to reconsider, finding that the doctrine of
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`fraudulent concealment did not apply to excuse Mr. Shorter from filing outside the statute of
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`limitations because (1) his amended complaint indicated that he received 30-day review forms in
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`his mail every month and he was aware of the conditions of his confinement, and (2) the Seventh
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`Circuit decision in Isby v. Brown, 856 F.3d 508 (7th Cir. 2017) was issued in 2017, and nothing
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`prevented Mr. Shorter from learning about Isby before July 2020. Dkt. 23.
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`II. Motion to Alter or Amend Judgment
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`On August 23, 2021, Mr. Shorter filed a motion to alter or amend judgment pursuant to
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`Federal Rule of Procedure 59(e). Dkt. 24. Rule 59(e) is only operative when the Court has
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`entered final judgment in a matter, closing the entire case. Because several claims remain
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`pending regarding Mr. Shorter's treatment during other time periods, no judgment has been
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`entered that can be altered or amended. Rather, Mr. Shorter is merely seeking reconsideration of
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`the Court's order on his first motion to reconsider. Construing the motion to alter or amend as a
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`second motion to reconsider, Mr. Shorter's motion, dkt. [24], is denied for the same reasons
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`discussed in the Court's previous order, dkt. 23.
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`III. Motions to Proceed In Forma Pauperis
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`Mr. Shorter has also filed a notice of appeal of the Court's screening order. Dkt. 26. He
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`seeks leave to proceed on appeal without prepayment of the appellate fees of $505.00. Dkts. 28,
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`38.1 "An appeal may not be taken in forma pauperis if the trial court certifies that the appeal is
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`not taken in good faith." 28 U.S.C. § 1915(a)(3). "Good faith" within the meaning of § 1915 is
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`judged by an objective, not a subjective, standard. See Thomas v. Zatecky, 712 F.3d 1004, 1006
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`1 The second motion is identical to the first but includes Mr. Shorter's trust account information.
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`(7th Cir. 2013) (stating that bad faith is a phrase that is understood to mean objective
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`frivolousness).
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`At this time, there is no objectively reasonable argument Mr. Shorter could present to
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`argue that the Court's screening order, which denied only those claims barred by the statute of
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`limitations, or the order denying his motion to reconsider were erroneous. As discussed, the
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`statute of limitations for Mr. Shorter's claims regarding his 2012−2016 incarceration in
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`segregation at WVCF began running upon his transfer to another facility in 2016 and expired in
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`2018. He had all the information necessary to pursue his claims by 2017 at the latest, and no
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`tolling exception applies because nothing indicates that the defendants prevented him from
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`obtaining that information. In pursuing an appeal, therefore, he "is acting in bad faith . . .
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`[because] to sue in bad faith means merely to sue on the basis of a frivolous claim, which is to
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`say a claim that no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d
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`1025, 1026 (7th Cir. 2000).
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`IV. Conclusion
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`For the foregoing reasons, the motion to alter or amend judgment, construed as a motion
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`to reconsider, dkt. [24], is denied. Mr. Shorter's motions to proceed on appeal in forma pauperis,
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`dkt. [28] and dkt. [38], are denied because they are brought in bad faith.
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`SO ORDERED.
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`4
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`Date: 9/21/2021
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`Case 2:20-cv-00657-JPH-DLP Document 41 Filed 09/21/21 Page 5 of 5 PageID #: 302
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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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`Conner Ross Dickerson
`INDIANA ATTORNEY GENERAL
`conner.dickerson@atg.in.gov
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`W. Andrew Kirtley
`INDIANA ATTORNEY GENERAL
`andrew.kirtley@atg.in.gov
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`5
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