statute of limitation for a continuing harm begins to run on the last occurrence of the harm
How later courts described this case
- statute of limitation for a continuing harm begins to run on the last occurrence of the harm
- stating that when the language of the complaint plainly shows that the statute of limitations bars the suit, dismissal under § 1915A is appropriate
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ROBERT SHORTER, )
)
Plaintiff, )
)
v. ) No. 2:20-cv-00657-JPH-DLP
)
JACK HENDRIX Executive Director of )
Classification; et al., )
)
Defendants. )
Order Screening Amended Complaint, Dismissing Insufficient Claims, and
Directing Issuance of Process
Plaintiff, Robert Shorter, at all times an inmate in the Indiana Department of Correction
("IDOC"), filed this action pursuant to 42 U.S.C. § 1983. Because Mr. Shorter is a "prisoner" as
defined by 28 U.S.C. § 1915A(c), this Court has an obligation under 28 U.S.C. § 1915A(a)
to screen his complaint before service on the defendants. Before the Court screened his original
complaint, Mr. Shorter filed a motion to amend. Dkt. 9. The Court granted the motion and directed
Mr. Shorter to file an amended complaint with all claims against all defendants. Dkt. 11. The
amended complaint, dkt. 12, is now subject to screening.
I. Screening Standard
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the amended complaint, or any
portion of the amended complaint, if it is frivolous or malicious, fails to state a claim for relief, or
seeks monetary relief against a defendant who is immune from such relief. In determining whether
the amended complaint states a claim, the Court applies the same standard as when addressing a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017). For the complaint to survive dismissal, it "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." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Pro se complaints are construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal
quotation omitted).
II. The Amended Complaint
At relevant times, Mr. Shorter was incarcerated at Wabash Valley Correctional Facility
("WVCF"), Pendleton Correctional Facility ("PCF"), and New Castle Correctional Facility
("NCCF"). He names twelve defendants in his amended complaint: (1) Charles Dugan, Case
Worker at WVCF; (2) Beverly Gilmore, Case Worker at WVCF; (3) Jerry Snyder, Unit Team
Manager at WVCF; (4) Richard Brown, WVCF Warden (former); (5) Frank Vanihel, WVCF
Warden (current), (6) Dushan Zatecky, PCF Warden; (7) John Stafford, Unit Team Manager at
PCF; (8) Mr. Arnold, Case Worker at PCF; (9) Mr. Cook, Case Worker at PCF; (10) Ms. Brown,
Case Worker at PCF; (11) Robert Carter, IDOC Commissioner; and (12) Jack Hendrix, Executive
Director of Classification at IDOC. Mr. Shorter seeks compensatory and punitive damages.
According to the amended complaint, Mr. Shorter has been held in segregation without
proper review since 2012 (with only a short break from segregation) at three different facilities.
Mr. Shorter alleges that in segregation, he is confined to a small cell for 23 hours a day and allowed
outdoor recreation for one hour a day alone. Whenever he leaves his cell, he has his hands cuffed
behind his back and his legs shackled. He can only shower three times a week. All meals are eaten
alone. A security light remains on 24 hours a day, disturbing his sleep. He is allowed no physical
contact or socialization with his family or friends.
Inmates in solitary confinement are entitled to a periodic review to determine if the reason
for segregation still exists. Mr. Shorter alleges that at each institution, he has received nothing but
perfunctory 30-day reviews, only learning about them after the fact when he receives a copy of the
form in the mail.
Mr. Hendrix, as executive director of classification for IDOC, is responsible for ensuring
that IDOC personnel are complying with policies related to classification. Similarly, Robert Carter,
as Commissioner, creates policies and rules for IDOC. Mr. Shorter alleges that I.C. § 11-10-1-
7(b)1 violates the Constitution.
January 2012 – July 2014: Wabash Valley Correctional Facility
Mr. Shorter was placed in administrative segregation at WVCF on or about January 24,
2012 until July 26, 2014.2 During this time, Ms. Gilmore, Mr. Snyder, and Warden Brown failed
to provide Mr. Shorter meaningful periodic review to determine if Mr. Shorter should remain in
segregation.
February 2016 – February 2020: Pendleton Correctional Facility
In February 2016, Mr. Shorter was transferred to PCF without any notification or
information about how he could appeal the transfer.
From February 2, 2016, through February 19, 2020, PCF officials Warden Zatecky,
Mr. Stafford, Mr. Arnold, Mr. Cook, and Ms. Brown failed to provide Mr. Shorter meaningful
periodic review to determine if Mr. Shorter should remain in segregation.
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.
February 2020 – October 2020: New Castle Correctional Facility
On February 19, 2020, Mr. Shorter was transferred to NCCF to participate in the STAND
Program, which helps inmates transition from solitary confinement to general population.
Mr. Shorter is a Hebrew Israelite. He was issued a conduct report for wearing a COVID-19 face
mask with a Star of David because it was alleged to be a gang symbol.3 As a result of the conduct
report, staff at NCCF reviewed Mr. Shorter's internal affairs prison record and placed him back in
segregation on April 29, 2020, pending transfer to long-term segregation due to "safety and
security reasons." Dkt. 12 at 7. Mr. Shorter alleges that the decision to place him in segregation
was rooted in his past conduct violation for a Class A-100 homicide at WVCF in 2014, rather than
current conduct. From April 24, 2020, through October 28, 2020, Mr. Shorter was denied
meaningful review of his placement in restrictive housing.
Mr. Hendrix approved Mr. Shorter's transfer back to department-wide long-term
segregation based on Mr. Shorter's 2014 conduct report and other old conduct reports.
October 2020 – Present: Wabash Valley Correctional Facility
Upon his return to WVCF and placement in segregation, Mr. Shorter asked Mr. Snyder
why he was considered a security threat. Mr. Snyder responded, "Central Office approved the
assignment. The conduct history refers to overall DOC conduct, which includes an offender
homicide. That qualifies you as a security threat." Dkt. 12 at 8.
Since his return to WVCF, Mr. Shorter has been denied his right to appeal his 30-day
reviews and has not received any meaningful reviews.
Warden Vanihel, the current warden at WVCF, has failed to ensure that meaningful
reviews are taking place.
3 This is the subject of another pending civil rights suit in this Court. Shorter v. Dunn, No. 1:20-cv-02824-
JRS-TAB.
III. Discussion
The claims based on Mr. Shorter's placement in solitary confinement at WVCF from 2012
to 2014 are barred by the statute of limitations. Suits under § 1983 use the statute of limitations
and tolling rules that states employ for personal-injury claims. In Indiana, the applicable statute of
limitations period is two years. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Ind.
Code § 34–11–2–4. Mr. Shorter's claims accrued against nearly all the WVCF defendants by no
later than July 26, 2014, when he was temporarily released from segregation at WVCF, or February
2, 2016,4 when he was transferred from WVCF to PCF. Mr. Shorter's complaint was signed on
November 30, 2020, more than two years after the expiration of Indiana's 2-year statute of
limitations.
The Court construes Mr. Shorter's amended complaint as asserting that the entire period of
segregation was a continuing harm for which the limitations period would begin only upon his
release from segregation. See Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013) (statute of
limitation for a continuing harm begins to run on the last occurrence of the harm). If Mr. Shorter
had remained in the same facility for the entire period, the continuing harm doctrine might have
allowed him to bring his claims for the entire period. But when Mr. Shorter was transferred from
WVCF to PCF, the WVCF defendants were no longer capable of stopping the harm, and at least
as to them, the harm no longer continued. Wilson v. Wexford Health Sources, Inc., 932 F.3d 513,
517–18 (7th Cir. 2019). "[D]ismissal under Rule 12(b)(6) on the basis of a limitations defense may
be appropriate when the plaintiff effectively pleads [himself] out of court by alleging facts that are
sufficient to establish the defense." Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006)
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.
(internal citations omitted); see also Koch v. Gregory, 536 Fed. Appx. 659 (7th Cir. 2013) (stating
that when the language of the complaint plainly shows that the statute of limitations bars the suit,
dismissal under § 1915A is appropriate). Accordingly, any claim arising out of Mr. Shorter's time
in segregation at WVCF from 2012 to 2016 is dismissed as untimely, and Warden Richard Brown
and Beverly Gilmore are dismissed as defendants. Mr. Snyder remains as a defendant because,
liberally construing the amended complaint, Mr. Shorter alleges that Mr. Snyder has failed to
provide meaningful review of Mr. Shorter's placement since Mr. Shorter's return to WVCF in
October 2020.
Any claim against case worker Charles Dugan is dismissed for failure to state a claim
upon which relief can be granted. A defendant can only be liable for the actions or omissions in
which he personally participated. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017).
There are no allegations against Mr. Dugan in the body of the amended complaint. But assuming
Mr. Dugan was a caseworker at WVCF from 2012 to 2016, any claim against him would also be
dismissed as being barred by the statute of limitations.
This action shall proceed with Fourteenth Amendment due process and Eighth
Amendment conditions-of-confinement claims against the following defendants in their individual
capacities only: (1) Dushan Zatecky, PCF Warden; (2) John Stafford, Unit Team Manager at PCF;
(3) Mr. Arnold, Case Worker at PCF; (4) Mr. Cook, Case Worker at PCF; (5) Ms. Brown, Case
Worker at PCF; (6) Jerry Snyder, Unit Team Manager at WVCF; (7) Jack Hendrix, Executive
Director of Classification at IDOC; (8) Warden Vanihel; and (9) Robert Carter, IDOC
Commissioner. See Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000) ("Where the plaintiff seeks
injunctive relief from official policies or customs, the defendant has been sued in her official
capacity; where the plaintiff alleges tortious conduct of an individual acting under color of state
law, the defendant has been sued in her individual capacity.").
This summary includes all the viable claims identified by the Court. If Mr. Shorter believes
that additional claims were alleged in the complaint, but not identified by the Court, he shall have
through June 18, 2021, in which to identify those claims.
IV. Service of Process
The clerk is directed to terminate Warden Richard Brown, Deputy Warden Frank
Littlejohn, and Randall Parcell as defendants on the docket and to add Warden Vanihel and Robert
Carter, IDOC Commissioner, as defendants.
Further, the clerk is directed pursuant to Federal Rule of Civil Procedure 4(c)(3) to issue
process to defendants (1) Dushan Zatecky, PCF Warden; (2) John Stafford, Unit Team Manager
at PCF; (3) Mr. Arnold, Case Worker at PCF; (4) Mr. Cook, Case Worker at PCF; (5) Ms. Brown,
Case Worker at PCF; (6) Jerry Snyder, Unit Team Manager at WVCF; (7) Jack Hendrix, Executive
Director of Classification at IDOC; (8) Warden Vanihel; and (9) Robert Carter, IDOC
Commissioner. Process shall consist of the amended complaint, dkt. [12], applicable forms (Notice
of Lawsuit and Request for Waiver of Service of Summons and Waiver of service of Summons),
and this Order.
SO ORDERED.
Date: 5/25/2021
Slam ruck anor
James Patrick Hanlon
United States District Judge
Southern District of Indiana
Distribution:
ROBERT SHORTER
108402
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Electronic Service to IDOC Employees—
at Pendleton Correctional Facility:
Dushan Zatecky, PCF Warden
John Stafford, Unit Team Manager
Mr. Arnold, Case Worker
Mr. Cook, Case Worker
Ms. Brown, Case Worker
at Wabash Valley Correctional Facility:
Jerry Snyder, Unit Team Manager
Warden Vanihel
at IDOC Central Office:
Robert Carter, Commissioner
Jack Hendrix, Executive Director of Classification