LONG v. FRENCH

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

COURTNEY LONG, )

)

Plaintiff, )

)

v. ) No. 1:22-cv-01712-JPH-TAB

)

JENNIFER FRENCH et al., et al., )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'

MOTIONS FOR SUMMARY JUDGMENT

Courtney Long is a prisoner who alleges that Defendants wrongfully

confined him in segregated housing—essentially solitary confinement—for

extended periods of time between 2011 and 2022. He brings claims under 42

U.S.C. § 1983 for violations of his Fourteenth Amendment due process rights

and his right to be free from retaliation for engaging in constitutionally-protected

activity. Defendants, who work for the Indiana Department of Correction

("IDOC") or IDOC contractors, have filed motions for summary judgment. Dkts.

[62], [65]. For the reasons below, those motions are GRANTED IN PART AND

DENIED IN PART.

I.

Summary Judgment Standard

A motion for summary judgment asks the Court to find that a trial is

unnecessary because there is no genuine dispute as to any material fact and,

instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ.

P. 56(a). When reviewing a motion for summary judgment, the Court views the

record and draws all reasonable inferences from it in the light most favorable to

the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565,

572–73 (7th Cir. 2021). It cannot weigh evidence or make credibility

determinations on summary judgment because those tasks are left to the fact-

finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). A court only has to

consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it need

not "scour the record" for evidence that might be relevant. Grant v. Trs. of Ind.

Univ., 870 F.3d 562, 573−74 (7th Cir. 2017) (cleaned up).

A party seeking summary judgment must inform the district court of the

basis for its motion and identify the record evidence it contends demonstrates

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

Whether a party asserts that a fact is undisputed or genuinely disputed,

the party must support the asserted fact by citing to particular parts of the

record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).

Failure to properly support a fact in opposition to a movant's factual assertion

can result in the movant's fact being considered undisputed, and potentially in

the grant of summary judgment. Fed. R. Civ. P. 56(e).

II.

Factual Background

Because Defendants have moved for summary judgment under Rule 56(a),

the Court views and recites the evidence in the light most favorable to Mr. Long

and draws all reasonable inferences in his favor. Khungar, 985 F.3d at 572–73.

A. The Parties

Mr. Long is a prisoner who has been in the custody of the IDOC for nearly

15 years. During that time, he has been housed at multiple prisons, including

Pendleton Correctional Facility, Wabash Valley Correctional Facility, New Castle

Correctional Facility (which is operated by GEO Group, Inc.), Westville

Correctional Facility, and Indiana State Prison. Mr. Long's current earliest

expected release date is in 2036. Dkt. 77-1.

Defendants are employees of the IDOC and GEO Group, who worked at

IDOC's Central Office and the prisons where Mr. Long has been housed. During

the relevant timeframe of the events alleged in Mr. Long's complaint, Defendants

Hendrix and Basinger worked at the IDOC Central Office; Defendants French,

Fitch, Joseph, Sanford, Dickerson, and Sevier worked at New Castle; Defendant

Marshal worked at Wabash Valley; and Defendant Peterson worked at Pendleton.

Their respective positions and job duties relevant to this case are summarized

below:

Name Position Duty station

Jack Hendrix Executive Director of IDOC Central Office

Classification, 2011-

present

Mr. Hendrix's role, with respect to overseeing classification, "includes receiving

recommendations from facilities for offender admittance to and release from

department-wide administrative restrictive housing status." Dkt. 63-1 at 1

(Hendrix affidavit).

James Basinger Deputy Commissioner of IDOC Central Office

Operations, 2013-

present

Mr. Basinger's role, in part, is to oversee the IDOC classification division. Dkt.

63-5 at 1 (Basinger affidavit).

Robert Marshall Lead investigator, Office Wabash Valley

of Investigations and

Intelligence, 2014-

October 2016

Mr. Marshall's job included making recommendations regarding inmates'

restrictive housing status at Wabash Valley. Dkt. 63-6 at 1 (Marshall affidavit).

Walter Peterson Internal investigator, Pendleton

1980-2020

Tina Dickerson Caseworker, March New Castle

2021-April 2023

Ms. Dickerson was assigned to New Castle's restrictive housing unit between

October and December 2021. Part of her duties were to participate in and

document periodic reviews of inmates who were in restrictive status housing,

including Mr. Long's reviews between October and December 2021. Dkt. 63-8

at 1 (Dickerson affidavit).

Christopher Sanford IDOC Investigator and New Castle

correctional police

officer, August 2018-

present

Mr. Sanford sometimes provides recommendations on whether an inmate

should be in restrictive housing. Dkt. 63-9 at 1 (Sanford affidavit).

Sammy Joseph GEO Group Investigator, New Castle

present

Mr. Joseph was personally involved with Mr. Long's restrictive housing

placement reviews at New Castle. Dkt. 67-5 at 1 (Joseph affidavit).

Scott Fitch Assistant Warden, 2006- New Castle

present

Jennifer French GEO Group Assistant New Castle

Facility Administrator

Ms. French was personally involved with Mr. Long's restrictive housing

placement reviews at New Castle. Dkt. 67-7 at 1 (French affidavit).

Mark Sevier Warden, present New Castle

B. IDOC Segregation Policies and Procedures

IDOC prisoners are ordinarily housed in what is referred to as "general

population" but may be assigned to segregated or restricted housing in the form

of administrative segregation, also referred to as restrictive housing, and

disciplinary segregation. Although New Castle is operated by GEO Group, it still

is subject to IDOC rules and regulations and oversight of inmates' restrictive

housing classifications. See dkt. 67-5 at ¶ 6.

Administrative segregation, or restrictive status housing, may be imposed

at the facility level or department-wide level: "(1) facility administrative restrictive

status housing ("ARSH"); and (2) department-wide administrative restrictive

status housing ("DW-ARSH")." Dkt. 63-1 at 1. Placement in either type of

administrative segregation "shall be based on the" (1) threat to life, self, staff,

other offenders, or property; (2) threat to the orderly operation and security of a

facility; and (3) regulation of an inmate's behavior that has not been within

acceptable limits. Id. at 4-5 (copy of IDOC Policy 02-01-111). Final decisions

regarding ARSH placement are made at the facility level. Dkt. 63-1 at 1-2. Final

decisions whether to place an inmate on DW-ARSH are made by regional

directors at IDOC central office, with input from facility staff and central office

classification staff, including Mr. Hendrix. Id. at 2.

Disciplinary restrictive housing or segregation, like administrative

segregation, may be facility-based ("DRSH") or department-wide ("DWRH-D").

Dkt. 77-1 at 36-37 (copy of IDOC Policy 02-04-102). A prisoner is placed in

disciplinary restrictive housing or segregation as a sanction imposed by the

Disciplinary Hearing Board. Under the Disciplinary Restrictive Housing

Regulations, "[a]dmission of an offender to a disciplinary restrictive status

housing unit shall be documented in the unit log," along with completion of State

Form 39588. Id. at 40. The policy also does not allow an offender to "remain on

disciplinary restrictive status housing longer than the given disciplinary sanction

imposed by the Disciplinary Hearing Board." Id. at 44.

C. Mr. Long's Time at Pendleton: 2011 – January 2015

While at Pendleton, Mr. Long was found guilty of disciplinary violations

related to trafficking cell phones. Dkt. 73 at 1-2 (Long Affidavit). As a sanction,

he was ordered to serve time in disciplinary segregation; according to IDOC

records, the last period of disciplinary segregation during Mr. Long's time at

Pendleton would have ended in April 2013. Dkt. 63-4 at 1 (Long's IDOC

Disciplinary Records). While serving disciplinary sanctions at Pendleton, Mr.

Peterson approached Mr. Long and told him he could make Mr. Long's "situation

go away" if he cooperated with further investigation into cellphone trafficking. Id.

at 2-3. After Mr. Long refused to cooperate, Mr. Peterson said "he would have me

moved further away from my family to the SHU at Wabash for a couple of years,

'to see if you change your mind.'" Mr. Long still refused to cooperate. Id. at 3.

D. Mr. Long's Time at Wabash Valley: January 2015 – June 2018

In January 2015, Mr. Long was transferred to Wabash Valley. See Dkt. 63-

1 at 3. Mr. Long was immediately assigned to a segregated or restrictive housing

unit where he remained until his June 2018 transfer to New Castle. Id. Upon

arriving at Wabash Valley, Mr. Marshall came to Mr. Long and said "that I should

debrief and give a statement involving trafficking" at Pendleton. Dkt. 73 at 3. Mr.

Long declined, and Mr. Marshall then said, "he would never recommend me to

be placed back into general population unless I played ball with their

investigation." Id. at 3.

Mr. Long started at Wabash Valley with a department-wide disciplinary

restrictive housing designation, but that designation was changed to

department-wide administrative restrictive housing in September 2016. Id. At

that time he entered the ACT program with the goal of transferring back to

general population.1 Id. But he was later approached by unidentified OII officers

and told he needed to cooperate with Mr. Peterson about the cellphone trafficking

investigation or he would be removed from the ACT program. Id. In November

2016, after Mr. Long said he would not cooperate, he was removed from the ACT

program and continued in segregation. Id. Mr. Long returned to the ACT program

in March 2017 but was again removed from it in August 2017. Id. at 4.

In his affidavit, Mr. Long states that he was not in DWRH-D at Wabash

Valley but instead was in DW-ARSH, at least from September 2016 onwards.

Dkt. 73 at 3.2 He has also designated emails between IDOC staff, including Mr.

1 "ACT" apparently refers to the IDOC's Actions, Consequences, and Treatment Program.

See Isby v. Brown, 856 F.3d 508, 516 (7th Cir. 2017).

2 According to Mr. Hendrix's affidavits, Mr. Long was in DWRH-D for the entirety of his

stay at Wabash Valley. Dkt. 63-1 at 3; dkt. 75-1 ("As a technical matter, Long may have

been classified as in administrative restrictive housing, but this was not the purpose for

his being in restrictive housing.").

Hendrix and Mr. Basinger and then-IDOC Commissioner and non-defendant

Robert Carter, about having "the RH (DS, AS, PC) time verified for the offenders

on the attached list [including Mr. Long]. I think there may be some

discrepancies." Dkt. 73-1, at 36. A response indicates that Mr. Long was "listed

as DS under RH Type and should be AS." Id. at 35.

On August 18, 2017, Commissioner Carter emailed Mr. Hendrix, stating

about Mr. Long that "16 months is quite awhile. I would consider giving him a

chance." Id. at 37. Mr. Hendrix responded, cc'ing Mr. Basinger, "Sure is. His

conduct has cleaned up quite a bit and if he has finished Phase 4 he should be

ready to return to their GP. I have call into the facility for their report and status

on where he is in the review process." Id. Mr. Basinger forwarded this email to

Janna Anderson, who is not a defendant and worked as administrative secretary

at Wabash Valley. Ms. Anderson responded, "Interesting. . . . I believe OII

believes him to be a security concern, however I'm sure Jack will find out for

sure." Id.

On August 21, 2017, Mr. Hendrix wrote Commissioner Carter, cc'ing Mr.

Basinger, "After checking further and discussing his status with Wabash staff,

he is not an AS offender, but rather is serving disciplinary segregation sanctions.

Although his conduct record has shown marked improvement, his current

disciplinary sanction release date is May 18, 2018 [] due to a lengthy period of

conduct issues involving cell phones and possession of controlled substances."

Id. at 38. The email also referred to an ongoing OII investigation into suspected

trafficking between Mr. Long and his non-incarcerated brother, noting that there

was insufficient evidence to file any charges related to those suspicions. Id.

The designated evidence contains documentation of periodic reviews for

potential removal from restrictive housing at Wabash Valley, but only beginning

in September 2016. From September 2016 through August 2017, the monthly

reviews were named "Department Administrative Restrictive Status Housing

Review." Dkt. 73-1 at 19-21, 25, 27-29, 31-33. Those reviews said, "Your status

has been reviewed and there are no changes recommended to the Executive

Director of Operations at this time. Your current Department Administrative

Restrictive Housing Status shall remain in effect unless otherwise rescinded by

the Executive Director of Operations." Id.

In September 2017, after Mr. Hendrix discussed Mr. Long's segregation

status with Wabash Valley staff, the monthly reviews were renamed,

"Department Disciplinary Restrictive Status Housing Review." Dkt. 75-2. Every

one of these reviews said, "Offender is appropriately placed at this time." Id.

Mr. Hendrix testified in an affidavit that Mr. Long "was found guilty of

several conduct violations and the Disciplinary Hearing Board sanctioned him

to serve time in disciplinary restrictive housing" for the following date ranges

while at Wabash Valley:

• November 2014 to May 2015 – 6 months

• May 2015 to November 2015 – 6 months

• November 2015 to February 2016 – 3 months

• February 2016 to August 2016 – 6 months

• August 2016 to November 2016 – 6 months

• November 2016 to February 2017 – 6 months

• February 2017 to August 2017 – 6 months

• August 2017 to February 2018 – 3 months

• February 2018 to May 2018 – 3 months

Dkt. 75-1 at 3.

Defendants have also submitted in support of summary judgment a record

of Mr. Long's conduct violations. Dkt. 63-4. The report lists several IDOC guilty

disciplinary findings from 2010 to 2014. Id. at 2-4. Then, there are three guilty

findings from early 2016—for unauthorized possession of property, disruptive

behavior, and abuse of mail/telephone/visits. Id. at 1. There are no more guilty

findings until May 2019. Id. This document also lists four occasions on which

Mr. Long was penalized with placement in disciplinary segregation for his

conduct violations, for 3 months each time, with the last being recorded in

January 2013. Id.

E. Mr. Long's Time at New Castle: June 2018 – December 2021

Mr. Long was transferred to New Castle in June 2018 and spent most of

the next two-and-a-half years in a "transition unit." Dkt. 73-1 at 15 (April 26,

2021 letter from French to IDOC central office). Although he had three brief stints

in facility-based administrative and disciplinary segregation, none was for longer

than two to three weeks. Dkt. 63-1 at 3. Mr. Long's time in the "transition unit"

is not recorded as time in segregation by either the IDOC or New Castle.3

Mr. Long graduated from the ACT program in December 2018 and the

STAND program (another general population reintegration program offered at

New Castle) in December 2020. Dkt. 73 at 4. Mr. Long expected to be transferred

to general population after completing these programs, but he was not. Id. Mr.

Long learned in February 2021 from a New Castle caseworker that his

completion of these programs was not reflected in the prison's computer system.

Id. at 5-6. The caseworker said it was "odd" that the completions did not show

up in the computer system and that the "administration had something against

[him]." Id.; see also dkt. 73-1 at 12 (copy of STAND review document dated

December 17, 2020, stating Mr. Long had successfully completed the program).

In November 2020, Defendants Sanford and Joseph approached Mr. Long

about cooperating in the Pendleton trafficking investigation. Dkt. 73 at 4. After

Mr. Long again refused to cooperate, Defendants Sanford and Joseph told him

he "would never get out of lockup if [he] didn't cooperate." Id.

On December 20, 2020, three days after Mr. Long graduated from the

STAND program, Mr. Sanford filed a conduct report against him for attempted

trafficking of a controlled substance. Id. at 4-5. Mr. Long denied the accusations.

Before the disciplinary hearing held on February 3, 2021, Defendants Sanford

3 The New Castle "transition unit" has been described as "a step-down program for

offenders who have been in restrictive-status housing for several years or longer" but

with additional programming available for general population reintegration. Isby, 856

F.3d at 516-17.

and Joseph confronted Mr. Long with a camera and said, "if I just debrief this

could all go away." Id. at 5. Mr. Long refused, id., and he was found guilty after

the disciplinary hearing. See Long v. Warden, 1:21-cv-01806-TAB-SEB (S.D.

Ind.), dkt. 9-9. Mr. Long was sanctioned with 45 days commissary suspension,

90 days lost credit time, and a demotion in credit class, but he was not ordered

to be placed in disciplinary segregation. Id. Mr. Long pursued habeas corpus

relief, which this Court denied. Id. at dkt. 14.

Also in February 2021, Defendants Sanford and Joseph searched Mr.

Long's cell and found a controlled substance, which Mr. Long denies he

possessed. Dkt. 73 at 5.4 On February 13, 2021, Mr. Long was assigned to ARSH,

and he would remain in segregation for his remaining time at New Castle, until

December 30, 2021. Mr. Long also had disciplinary findings at New Castle in

May 2019 for disorderly conduct, in November 2019 (twice) for being in an

unauthorized area and having an intoxicating substance, in February 2020 for

being in an unauthorized area, in June 2020 for possession or use of a controlled

substance, in February 2021 for fighting, in March 2021 for having an

intoxicating substance, and in June 2021 for unauthorized possession of

property. Dkt. 63-4 at 1.

In March 2021, Mr. Long asked Ms. French when he could expect to be

moved back to general population. Defendant French responded, "you have to

help yourself Mr. Long, they're not going to release you back to population unless

4 It appears that Mr. Long sought habeas relief for this disciplinary finding, which this

Court denied. See Long v. Warden, No. 1:21-cv-02056-JRS-DML (S.D. Ind.), dkt. 14.

you sit down with them and tell them what you know." Id. at 6. Mr. Long again

refused to cooperate. Id.

In April 2021, Ms. French wrote a letter to IDOC central office requesting

permission for Mr. Long to participate in the STAND program. Dkt. 73-1 at 15.

The letter refers to a previous request by New Castle for Mr. Long to be

transferred to a different facility, which IDOC had denied.5 Id. The letter states

that Mr. Long had previously been unsuccessful in the STAND program. Id. It

also refers to Mr. Long having accumulated "five major conduct reports and three

minor conduct reports" since arriving at New Castle. Id. In September 2021,

Warden Sevier wrote a similarly-worded letter to IDOC central office, requesting

that Mr. Long be assigned to department-wide administrative restrictive housing

status. Id. at 17. At some point thereafter, Mr. Long was assigned DW-ARSH.6

After Mr. Long was transferred to ARSH at New Castle, he received weekly

status reviews, beginning February 24, 2021. See dkt. 67-2 at 7. Unlike the

reviews at Wabash Valley, these reviews are reflected on State Form 56670,

"Facility Restrictive Housing, Protective Custody, and Department Wide

Restrictive Housing (DWRH) Review." Id. The form includes multiple boxes to

check if an inmate is to be continued in segregation: "Threat to facility security";

"Escape risk"; "Additional observation needed"; "Overall negative adjustment";

5 No details or communications regarding that request are in the designated evidence.

6 Mr. Hendrix's affidavits in support of summary judgment state that Mr. Long was in

ARSH until he was transferred to Westville, when the designation was changed to DW-

ARSH. Dkts 63-1 at 3; 75-1 at 2.

"Recent negative adjustment"; "Protective custody (PC)/safekeeping"; "Failure to

adjust"; and "Other (Explain in comments)". Id.

On the vast majority of the reviews after February 24, 2021, only the boxes

"Additional observation needed" and "Other" are checked. Id. The "Comments"

section for checking the "Other" box contains minimal information, usually

"Admin Hold." Id. at 7, 10-16, 18, 20-27, 30-33, 35, 37-38, 41-44, 46-49. Some

of the reviews refer to awaiting directives "from Central Office," apparently

referring to a decision either to transfer Mr. Long to another facility or to be

placed in department-wide administrative segregation. See, e.g., id. at 37. On

May 5, 2021, the boxes "Overall negative adjustment" and "Failure to adjust"

also are checked. Id. at 20.

F. Mr. Long's Time at Westville: December 2021 – May 2022

At the end of December 2021, Mr. Long was transferred to Westville on

DW-ARSH status. Dkt. 63-1 at 3. On May 13, 2022, he was released from

segregation altogether and transferred to Indiana State Prison in general

population. Mr. Long's periodic reviews at Westville are similar to those he

received at New Castle while in ARSH—forms filled out by hand at first on a

weekly basis by a caseworker, then after February 2022 every thirty days. Dkt.

67-2 at 62-75.7

7 Mr. Long's complaint originally named, in addition to the current defendants, three

caseworkers at Westville: Thomas Krause, D. Malfese, and C. Carroll. Id. at 8. Mr. Long

later stipulated to a dismissal of these caseworkers as defendants in this action. Dkt.

44.

G. Conditions of Segregation

Mr. Long testified in his affidavit that there was little practical difference

between the conditions in long-term administrative segregation and those in

disciplinary segregation. He testifies that, unlike inmates in general population,

he was locked in his cell 23 hours a day, with one hour per day of solitary

recreation time. Dkt. 73 at 1-2. He was always shackled and cuffed when taken

out of his cell. Showers were limited to three times a week, and sometimes less.

Id. Sometimes the hot water turned was turned off in the showers to discourage

showering. Id. Mr. Long ate all his meals alone. Id. A security light was left on in

his cell 24 hours a day. Id. He had limited visitation, and no physical contact

allowed with any visitors. Id. He was routinely strip searched and frequently had

reading materials confiscated. Id. He was surrounded by screaming and/or

suicidal inmates. Id. Guards sometimes turned the air conditioning up in the

cells very high and then sealed the cells off to make it extremely cold in the cells.

Id.

Mr. Long also testified that his conditions of confinement were similar

during his time in the New Castle "transition unit." See id. at 1 (describing these

conditions as applying to all years while in segregation from 2011 to 2022); dkt.

72 at 3 (Long's brief in response to summary judgment alleging "over six years

in administrative segregation after serving at least five years on disciplinary

segregation"); dkt. 77 at 2-3 (Long's summary judgment sur-reply brief).

Defendants do not dispute Mr. Long's description of the conditions of

confinement in the "transition unit."

H. Procedural History

Mr. Long brought this case in August 2022, dkt. 1, and is proceeding on

claims that Defendants violated his Fourteenth Amendment due process rights

and that they retaliated against him because of his refusal to cooperate in an

internal affairs investigation, dkt. 10 (screening order). He alleges that he was

designated to and remained in segregated housing because he would not

cooperate with IDOC officials' investigation of cell phone trafficking. He further

alleges that he was not given meaningful periodic reviews to determine whether

there were legitimate reasons to keep him in segregated housing.

Two groups of Defendants have separately moved for summary judgment.

Dkt. 62 (Defendants Hendrix, Basinger, Peterson, Marshall, Sanford, and

Dickerson ("Group 1 Defendants")); dkt. 65 (Defendants French, Joseph, Sevier,

and Fitch ("Group 2 Defendants")).

III.

Discussion

Before turning to the merits, the Court addresses Mr. Sanford's argument

that he was no longer a defendant in this action after the Court issued its

screening order pursuant to 28 U.S.C. § 1915A. Dkt. 62 at ¶ 5. While the

screening order did not list Mr. Sanford as a defendant against whom the due

process and retaliation claims were proceeding, dkt. 10 at 3, that did not result

in Mr. Sanford's dismissal from this case. On the contrary, other aspects of the

screening order and Mr. Sanford's own actions made clear that he remained in

the case as a defendant. First, his name was not included on the list of

defendants whom the Court directed to be terminated from the docket. Id. at 5.

Second, Mr. Sanford was issued process along with the other defendants. Id. at

7. Third, Mr. Sanford waived service and answered the complaint on the merits,

dkts. 14 and 18. Fourth, he did not move to dismiss the complaint against him

(as expressly allowed by the screening order) based on lack of notice or for failure

to state a claim, or raise this issue prior to summary judgment. Finally, he does

not cite any authority for the proposition that the screening order's failure to

expressly include him as a defendant in the body of the order now precludes

further consideration of any claims against him. Instead, his brief addresses Mr.

Long's claims against him on the merits. The Court will do likewise.

A. Retaliation

Defendants Peterson, Marshall, Sanford, and Joseph argue they are

entitled to summary judgment on Mr. Long's retaliation claims because Mr. Long

has not shown a link between his exercise of the right not to incriminate himself

and a decision to place and keep him in segregated housing. Mr. Long responds

that there are disputed material issues of fact in that regard.

The Court's screening order did not specify whether Mr. Long's retaliation

claims would fall under the First or Fifth Amendments. See dkt. 10 at pp. 3, 5.

Regardless, all Defendants "acknowledge that Long 'engaged in protected activity

when he refused to provide information to [OII] . . . .'" Dkt. 64 at 11 (Group 1

Defendants' summary judgment brief) (quoting Vermillion v. Levenhagen, 2018

WL 2321112 (S.D. Ind. 2018)); see also dkt. 66 at 11 (agreeing "that refusal to

cooperate in an investigation is a Constitutionally protected activity.") (Group 2

Defendants' summary judgment brief). The Group 1 Defendants' brief, as well as

the Vermillion opinion it cites, refers to both the First and Fifth Amendments as

the source of the right not to cooperate in an internal prison investigation.

Mr. Long asserts that he repeatedly invoked his right not to answer

questions or cooperate at all. "Plaintiff disputes any and all allegations that he

was not retaliated against for asserting his right to remain silent in order to deter

him from asserting his right to remain silent in the future." Dkt. 71 ¶ 4. This

arguably implicates the Fifth, rather than the First Amendment, though the

issue is not firmly settled in the Seventh Circuit. See Thomas v. Gomez, 2024 WL

2248273 at n.5 (N.D. Ill. 2024). "The weight of authority suggests that an

inmate's refusal to cooperate with a prison investigation is not protected speech

unless the inmate invokes his Fifth Amendment right against self-incrimination."

Id. See also McKinley v. Schoenbeck, 731 F. App'x 511, 514 (7th Cir. 2018)

(holding inmate had First Amendment right to truthfully answer investigators'

questions by expressly denying knowledge of gang activity).

In Caffey v. Maue, 679 F. App'x 487, 490 (7th Cir. 2017), the Seventh

Circuit stated, "prisoners may be compelled to disclose information during

internal investigations provided they are not punished for refusing to make self-

incriminating statements," that is, by offering the prisoner immunity from

prosecution for answers he or she may give. (citing Riggins v. Walter, 279 F.3d

422, 430 (7th Cir. 1995)). Put another way, the Fifth Amendment gives a person

the right "not to answer official questions put to him in any other proceeding,

civil or criminal, formal or informal, where the answers might incriminate him

in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). This

right applies in the prison disciplinary context, and prison officials may violate a

prisoner’s right against self-incrimination if a prisoner’s silence alone results in

punishment of the kind capable of compelling waiver of the right. See Minnesota

v. Murphy, 465 U.S. 420, 434 (1984); Baxter v. Palmigiano, 425 U.S. 308, 317

(1976); LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995).

In Caffey, the Court held that the prisoner had failed to state a Fifth

Amendment retaliation claim because he had not alleged that his statements to

investigators might incriminate him. Caffey, 679 F. App'x at 490. Here, by

contrast, a reasonable jury could infer from the context that by steadfastly

refusing to be interviewed, Mr. Long was invoking his right against self-

incrimination—he had previously been disciplined for his involvement with cell

phone trafficking and prison officials' statements show that they wanted to know

more about his involvement. Defendants therefore do not dispute that Mr. Long's

answers to investigators' questions about cellphone trafficking might have

incriminated him in a future criminal proceeding. See, e.g., Ind. Code § 35-44.1-

3-5(b) (Level 5 felony trafficking with an inmate if the contraband is a cellphone);

Ind. Code § 35-44.1-3-8 (Class A misdemeanor possession of a cellphone while

incarcerated). And there is no designated evidence that Mr. Long was offered

immunity from criminal prosecution in exchange for cooperating with

investigators.

Defendants argue that they are entitled to summary judgment because

there is no evidence that Mr. Long's refusal to cooperate was a motivating factor

in his placement or retention in segregation. Defendants agree that the elements

of a Fifth Amendment retaliation claim are parallel to a First Amendment

retaliation claim. Such claims therefore require a plaintiff "to show that the

speech or activity was constitutionally protected, a deprivation occurred to deter

the protected speech or activity, and the speech or activity was at least a

motivating factor in the decision to take retaliatory action." Manuel v. Nalley, 966

F.3d 678, 680 (7th Cir. 2020). "The motivating factor [element] amounts to a

causal link between the activity and the unlawful retaliation." Manuel, 966 F.3d

at 680. This element may be proven by circumstantial evidence, which may

include suspicious timing; ambiguous statements, behavior, or comments

directed at others in the protected group; evidence that similarly situated people

were treated differently; and evidence that the decisionmaker offered a pretextual

reason for an allegedly retaliatory action. Id.; Hobgood v. Ill. Gaming Bd., 731

F.3d 635, 643–44 (7th Cir. 2013). "Suspicious timing alone will rarely be

sufficient to create a triable issue because suspicious timing may be just that—

suspicious—and a suspicion is not enough to get past a motion for summary

judgment." Manuel, 966 F.3d at 680 (cleaned up) (standing alone, fact that

inmate's cell was shaken down nine minutes after he engaged in First

Amendment protected activity could not create triable issue of fact as to

retaliation claim because another, non-retaliatory motive existed).

In McKinley, an inmate asserted that prison investigators retaliated

against him for denying any knowledge regarding gang activity, which was

characterized as a First Amendment claim. The Seventh Circuit reversed the

district court's grant of summary judgment in favor of several of the prison

officials. First, it held that the inmate's placement in segregation for three years

was adequate evidence of "adverse action likely to deter future First Amendment

activity." McKinley, 731 F. App'x at 514. Second, the inmate provided evidence

that several prison officials made comments such as that they could be the

inmate's "'best friend or wors[t] nightmare' and that he 'better give them

something to go off of.' The timing of McKinley's placement in segregation

coupled with these comments could allow a reasonable jury to infer that

McKinley's protected speech was a motivating factor for his placement in

segregation." Id. Additionally, while defendants there designated evidence that

the inmate was placed in segregation for "safety and security" reasons, there was

also contrary evidence, "tending to show that the defendants’ rationale was a

pretext and that the real reason he was placed in segregation was retaliatory

animus." Id. at 515. The Court pointed to evidence showing a 4-year gap between

the inmate's last disciplinary guilty finding and his initial placement in

segregation, the lack of evidence that the inmate actually was a security threat,

the length of time the inmate was held in segregation, "and the number of times

officers interviewed him, as though they expected his answers to the same

questions to change to ones they liked." Id.

Accepting the veracity of Mr. Long's affidavit for summary judgment, his

retaliation claims are based on the following:

• At Pendleton, Mr. Peterson told Mr. Long, after he was disciplined for

cellphone trafficking, that Mr. Long's "situation [could] go away" if he

cooperated with further investigation into cellphone trafficking. Dkt. 73 at

2-3. After Mr. Long refused to cooperate, Mr. Peterson said "he would have

me moved further away from my family to the SHU at Wabash for a couple

of years, 'to see if you change your mind' . . . ." Id. at 3. Mr. Long refused

to cooperate with Mr. Peterson and was transferred to Wabash Valley a

short time thereafter for reasons that are not clear in the record.

• At Wabash Valley, Mr. Marshall told Mr. Long that he would never

recommend his return to general population unless he "played ball with

their investigation." Id. Mr. Long refused to cooperate, and he never was

returned to general population during the three-and-a-half years he was

at Wabash Valley, despite not incurring any new disciplinary charges

during that time. (As noted, Mr. Marshall left his employment at Wabash

Valley in October 2016).

• At New Castle, Defendants Sanford and Joseph told Mr. Long in November

2020 that he "would never get out of lockup if [he] didn't cooperate" with

the Pendleton trafficking investigation. Id. at 4. By that time, Mr. Long had

graduated from the ACT program and was about to graduate from the

STAND program, expecting to be reintegrated into the general population.

However, these graduations were not recorded in New Castle's computer

system. Mr. Long learned in February 2021 from a New Castle caseworker

that these completions for some unknown reason were not reflected in the

prison's computer system. Id. at 5-6. Also, shortly after Mr. Long's

December 2020 STAND graduation, Defendants Sanford and Joseph

initiated disciplinary proceedings against him. Shortly before the

disciplinary hearing on this matter, Defendants Sanford and Joseph

confronted Mr. Long and said, "if I just debrief this could all go away." Id.

at 5. Mr. Long refused, id., and he was found guilty after the disciplinary

hearing. Also in February 2021, Defendants Sanford and Joseph searched

Mr. Long's cell and found a controlled substance, which Mr. Long denies

he possessed.

Construing the above evidence in a light most favorable to Mr. Long, there

are material questions of fact as to whether Defendants Peterson, Marshall,

Sanford, and Joseph retaliated against him because of his refusal to cooperate

into ongoing investigations of cellphone trafficking. Mr. Long's sworn statements

support an inference that Mr. Peterson had a say in Mr. Long's transfer from

Pendleton to Wabash Valley and his remaining in segregation at that time, and

that Mr. Peterson was motivated to do so at least in part because of Mr. Long's

refusal to cooperate. Mr. Long's sworn statements also support an inference that

Mr. Marshall had a say in Mr. Long's remaining in segregation at Wabash Valley,

at least through October 2016, and Mr. Marshall was motivated to do so at least

in part because of Mr. Long's refusal to cooperate.

Finally, Mr. Long's sworn statements support an inference that

Defendants Sanford and Joseph would not have pursued disciplinary action

against him, but for his invoking his right not to cooperate in a prison

investigation. There is more than just "suspicious timing" here—there is the

timing of Mr. Long's refusal to cooperate plus evidence of statements by Sanford

and Joseph to Mr. Long, as well as the "misplacing" of his ACT and STAND

graduations while at New Castle. Just as in McKinley, there is sufficient evidence

to survive summary judgment on Mr. Long's claims that Defendants Peterson,

Marshall, Sanford, and Joseph retaliated against him. Even assuming that there

were other factors for Mr. Long's placement and retention in segregation and for

his disciplinary findings at New Castle, there still is evidence in the record from

which a reasonable jury could find that Mr. Long's refusal to cooperate "was at

least a motivating factor" in those actions. See Manuel, 966 F.3d at 681. These

Defendants' motions for summary judgment are therefore denied with respect to

these claims.

Mr. Long has not designated evidence that any of the remaining

Defendants were personally involved in any alleged retaliation. "'To recover

damages under § 1983, a plaintiff must establish that a defendant was

personally responsible for the deprivation of a constitutional right.'" Whitfield v.

Spiller, 76 F.4th 698, 706 (7th Cir. 2023) (quoting Gentry v. Duckworth, 65 F.3d

555, 561 (7th Cir. 1995)). For this purpose, each defendant is considered

independently. Id.

Ms. French is alleged to have told Mr. Long in March 2021 that "they're

not going to release you back to population unless you sit down with them and

tell them what you know." Dkt. 73 at 6. While this statement may reflect that

Ms. French knew that others were retaliating against Mr. Long, it does not show

that she had any role or participated.8 And there is no evidence of any kind that

8 Such evidence, however, could be relevant to alleged retaliation by Defendants Joseph

and Sanford.

any other defendant did so. So, the remaining Defendants—French, Sevier,

Hendrix, Basinger, Dickerson, and Fitch—are entitled to judgment as a matter

of law on Mr. Long's retaliation claims against them. See McKinley, 731 F. App'x

at 514-15 (affirming summary judgment on retaliation claim as to defendant

against whom there was no evidence of retaliatory motive in placing inmate in

segregation).

C. Fourteenth Amendment Due Process Claims

1. Due Process Standard

The Fourteenth Amendment to the Constitution does not create a due

process liberty interest in avoiding transfer within a correctional facility or

remaining in the general prison population. See Wilkinson v. Austin, 545 U.S.

209, 222 (2005); Sandin v. Conner, 515 U.S. 472, 484 (1995). Instead, an inmate

will be entitled to due process protections only when the more restrictive

conditions pose an “atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. Inmates

therefore have no liberty interest in avoiding short-term transfer to segregation

for administrative, protective, or investigative purposes, even when they are

subjected to harsher conditions as a result. See, e.g., Townsend v. Fuchs, 522

F.3d 765, 766 (7th Cir. 2008); Lekas v. Briley, 405 F.3d 602, 608-09 (7th Cir.

2005). However, placement in long-term segregation approaching a year or more

can implicate a liberty interest, requiring further inquiry into whether the

conditions of confinement impose an atypical, significant hardship. See Marion

v. Columbia Corr. Inst., 559 F.3d 693, 698-99 (7th Cir. 2009) (determination of

whether 240 days in segregation imposed an atypical, significant hardship could

not be made at the pleading stage).

If placement in "administrative" segregation meets the "atypical and

significant hardship" standard, "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) (citing Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983)). Although such

periodic reviews need not be formal and adversarial, they must be sufficient to

ensure that administrative segregation does not become a pretext for indefinite

confinement. Id. The sufficiency of periodic reviews are evaluated by considering

"(1) the private interest (that is, [the inmate's] interest) affected by a governmental

decision, (2) the governmental interests at stake, and (3) 'the risk of an erroneous

deprivation of [the private] interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards.'" Id.

(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

If an inmate is subjected to discipline that results in a lengthening of state

custody, the inmate must challenge the discipline in a habeas corpus proceeding

under 28 U.S.C. § 2254 before resorting to a lawsuit under 42 U.S.C. § 1983.

See Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir. 2001). If such

discipline is not successfully challenged, any civil lawsuit based upon it is barred

by Heck v. Humphrey, 512 U.S. 477 (1994). Morgan v. Schott, 914 F.3d 1115,

1120 (7th Cir. 2019). And, if an inmate receives a mixed disciplinary sanction of

placement in segregation and deprivation of credit time or other sanction

resulting in a lengthening of custody, he or she cannot avoid the Heck bar by

purporting to waive any challenge to the length of custody sanction. Id. On the

other hand, if an inmate's discipline results only in changes in the conditions of

confinement and does not affect the length of custody, the Heck bar does not

apply to a § 1983 action challenging a placement in segregation. "Heck . . . limit[s]

only challenges to the fact or duration of a prisoner's sentence, not the conditions

of his confinement." Hall-Bey v. Hanks, 93 F. App'x 977, 980 (7th Cir. 2004).

2. Mr. Long's Time at Wabash Valley: January 2015 – June 2018

In their opening summary judgment brief, the Group 1 Defendants'

primary argument regarding Mr. Long's due process claim about his time in

segregation in Wabash Valley is that he was in "disciplinary" segregation, and

therefore his § 1983 claims are barred by Heck unless he first obtains reversal

of his disciplinary sanctions. The Group 1 Defendants cite no authority for this

proposition and, as discussed above, Heck bars a due process claim only when

disciplinary sanctions included loss of credit time or other lengthening of a

prisoner's sentence. See Hall-Bey, 93 F. App'x at 980; Fleming, 2021 WL

5919712 at *2. Here, Defendants have not designated evidence, such as unit

logbooks, State Forms 39588, or orders from the Disciplinary Hearing Board,

showing that Mr. Long was so disciplined in connection with his time in

segregation at Wabash Valley.

Moreover, there is a genuine issue of material fact as to which type of

segregation Mr. Long was in—disciplinary or administrative—during that time.

The IDOC's designated records appear to indicate that Mr. Long was at first

classified as being in disciplinary segregation, then it was noted that he should

be in administrative segregation, then that determination was reversed after Mr.

Hendrix spoke with Wabash Valley staff. Mr. Long's periodic reviews were

conducted as department-wide administrative segregation reviews from

September 2016 to September 2017, when they were switched to department-

wide disciplinary segregation periodic reviews. And before September 2016, there

is no designated evidence of what kind of periodic reviews Mr. Long had, if any.

From there, the Group 1 Defendants did not argue in their opening brief

that the periodic reviews Mr. Long received at Wabash Valley were

constitutionally adequate. They did briefly attempt to do so in their reply brief,

but without citation to any authority. Even if the Court were to overlook the

Defendants' failure to raise the issue initially and later failure to develop the

argument, it is difficult to distinguish this case from Isby with respect to the

"boilerplate" language and cursory nature of the reviews. See Isby, 856 F.3d at

515, 526-29. The Court further is troubled by the shifting and often

unsupported explanations, both contemporaneous and in litigation, of whether

and when Mr. Long was in "administrative" versus "disciplinary" segregation,

from which a jury could infer pretext.

It is undisputed that Mr. Long spent sufficient time in segregated housing

to qualify as an "atypical and significant" hardship for due process purposes.

Mr. Long had a long stretch of time while in segregation where he was not found

guilty of any conduct violations and received the same "boilerplate" reviews of

his status. Also, Mr. Long did not receive clear written communication of what

he might do differently to change his status. There also is evidence that Mr. Long

tried to avail himself of the ACT Program while at Wabash Valley to try to move

out of segregation, but was unable to do so for reasons that are unclear. There

is evidence from which a jury could infer that the real reason Mr. Long was kept

in segregation was because of suspicions he was engaged in ongoing trafficking,

but that explanation does not appear in the periodic reviews. Therefore, there is

a genuine issue of material fact as to whether Mr. Long's periodic reviews at

Wabash Valley were sufficient to meet due process requirements.

Finally, the Group 1 Defendants argue there is no designated evidence

from which a jury could find that any of them were personally involved with a

deprivation of Mr. Long's due process rights while at Wabash Valley. See

Whitfield, 76 F.4th at 706. They suggest that because they were not the "final

decisionmaker" with respect to Mr. Long's segregation status, they cannot be

held liable for due process violations associated with it. But they cite no

authority that only a "final decisionmaker" can be held responsible for such

violations, likely because that's not the law. To the contrary,

Any official who 'causes' a citizen to be deprived of [his]

constitutional rights can also be held liable [under §

1983]. The requisite causal connection is satisfied if the

defendant set in motion a series of events that the

defendant knew or should reasonably have known

would cause others to deprive the plaintiff of [his]

constitutional rights.

Conner v. Reinhard, 847 F.2d 384, 396–97 (7th Cir. 1988).

The designated evidence allows a reasonable jury to find direct and

personal involvement by Mr. Hendrix in Mr. Long's segregation status at Wabash

Valley and the nature of his periodic reviews there. First, his position at IDOC

central office gave him overall administrative oversight over classification and

restrictive housing issues at all IDOC facilities. Dkt. 63-1 at 1. Second, there is

evidence that Mr. Hendrix was directly involved with Mr. Long's classification

status at Wabash Valley. He made sure that Mr. Long should be deemed to be

on DWRH-D instead of DW-ARSH. Dkt. 73-1 at 38.

There is also designated evidence that Mr. Marshall was involved in

periodic reviews of Mr. Long's segregation status, at least to the extent of making

recommendations about inmates' restrictive housing status, up through October

2016, when he left Wabash Valley. Dkt. 63-5. At least for the time frame from

January 2015 to October 2016, there is sufficient designated evidence of Mr.

Marshall's involvement in a deprivation of Mr. Long's due process rights.

As to Mr. Basinger, he was in a supervisory role at IDOC central office with

the classification division being one of his responsibilities. Dkt. 63-5. He also

had some personal involvement regarding Mr. Long's restrictive housing status

at Wabash Valley. See dkt. 73-1 at 36-38. "Liability under § 1983 is direct rather

than vicarious; supervisors are responsible for their own acts but not for those

of subordinates, or for failing to ensure that subordinates carry out their tasks

correctly." Horshaw v. Casper, 910 F.3d 1027, 1029 (7th Cir. 2018). Something

more than generalized knowledge and inaction is required for personal

responsibility. Although what additional allegations are required are case-

specific, two scenarios are illustrative. First, a supervisor could be actually

engaged with the underlying issue such that personal responsibility is present.

See, e.g., Haywood v. Hathaway, 842 F.3d 1026, 1032-33 (7th Cir. 2016)

(holding that the Warden could be held personally responsible for the harm

caused by cold prison conditions because the evidence showed he "had actual

knowledge of the unusually harsh weather conditions, that he had been apprised

of the specific problem with the physical condition of [the plaintiff's] cell (i.e., the

windows would not shut), and that, during the time period of [the plaintiff's]

complaint, the warden toured the segregation unit himself"). Or second, personal

responsibility can be present when the underlying issue is the direct

responsibility of the individual in question, rather than one for his or her

subordinates. See Gray v. Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016) (holding

that the Warden was personally responsible for the alleged cell conditions, and

distinguishing Vance, because the Warden "not only knew about the problems

but was personally responsible for changing prison policies so that they would

be addressed").

Here, there is a question of fact regarding Mr. Basinger's level of personal

responsibility and involvement for generally ensuring that classification

decisions and restrictive housing statuses and reviews were conducted as

required by due process, and that Mr. Long specifically was being afforded due

process. Mr. Basinger therefore is not entitled to summary judgment.

There is no evidence of any other named defendant having been personally

involved in a potential deprivation of Mr. Long's due process rights at Wabash

Valley. Group 1 Defendants Dickerson, Peterson, and Sanford are therefore

entitled to summary judgment on this claim. Mr. Long does not argue that any

of the Group 2 Defendants are responsible for deprivation of his due process

rights during his time at Wabash Valley, and they likewise are entitled to

summary judgment on this claim.

3. Mr. Long's Time at New Castle: June 2018 – December 2021

a. "Transition Unit"

When Mr. Long first arrived at New Castle in June 2018, he was placed in

a "transition unit," where he remained until February 2021. He has consistently

alleged that regardless of what it was called, it functionally was placement in

segregation because the conditions he experienced were similar to those in

administrative or disciplinary segregation. None of the defendants have

responded to this assertion, except to suggest Mr. Long technically was in neither

administrative nor disciplinary segregation during this time.

Moreover, Mr. Long has testified that during that time he was "housed in

some form of segregation" the conditions of confinement that he experienced

were the same as the other times in segregation. Dkt. 73 at 1–2. And the

defendants have not designated evidence that Mr. Long received any kind of

meaningful periodic review during this 2.5-year time frame, except for those

times when he was briefly and "officially" placed in segregation. There is therefore

a material question of fact as to whether Mr. Long's due process rights were

violated during his time in the transition unit.

The record also reflects that Warden Sevier and Ms. French were

personally and directly involved with Mr. Long's housing placements within New

Castle. See dkt. 67-5 at 2 (Joseph affidavit) (noting that IDOC classification

system applies to New Castle). So, Defendants Sevier and French are not entitled

to summary judgment. There is no designated evidence, however, that Mr.

Hendrix and Mr. Basinger personally made specific classification decisions for

Mr. Long at New Castle. While they oversaw IDOC classification decisions

broadly, see dkt. 63-1 at 1; dkt. 63-5 at 1, under § 1983 "supervisors are

responsible for their own acts but not for those of subordinates, or for failing to

ensure that subordinates carry out their tasks correctly." Horshaw, 910 F.3d at

1029. Mr. Hendrix and Mr. Basinger are therefore granted summary judgment

regarding Mr. Long's time at New Castle.

The other remaining defendants from New Castle are also entitled to

judgment as a matter of law, because there is no designated evidence that they

were personally involved in the decision or implementation of a policy and

procedure at New Castle that provided for no periodic reviews at all for inmates

placed in the New Castle "transition unit."9

b. ARSH

Mr. Long was transferred to ARSH at New Castle in February 2021.

Thereafter, he received weekly periodic reviews, in which a caseworker would

make handwritten notations and comments on a form regarding the reasons for

Mr. Long remaining in ARSH. See generally dkt. 62-7. These reviews were

adequate for due process purposes under the circumstances. First, Mr. Long was

only in ARSH at New Castle for approximately 10 months. This length of time

9 The Court notes that Mr. Long misidentifies Mr. Fitch as former Wabash Valley warden,

whereas he clearly states in his affidavit that he has been New Castle assistant warden

since 2006. Dkt. 67-6. There is no reason to doubt this assertion.

could be long enough to trigger the requirement of periodic reviews of the

placement, but it's at the low end of the continuum. Second, although Mr. Long

went for long stretches of time at Wabash Valley and during the first part of his

time in the "transition unit" without any misconduct findings, that had changed

by February 2021, by which time he had accrued several new misconduct

findings and would accrue two more after his placement in ARSH. Dkt. 63-4 at

1. Third, although the weekly periodic review forms often do not contain detailed

information, they reflect that a caseworker filled them out manually rather than

merely printing out repeated "boilerplate" form notices like those Mr. Long

received at Wabash Valley. Under Isby, lack of detailed explanation in

segregation periodic reviews alone does not amount to a violation of due process.

Instead, the Court must consider and balance the Mathews v. Eldridge factors

as applied to a particular situation and inmate. After doing so here with respect

to Mr. Long's ARSH placement at New Castle, the Court concludes no reasonable

jury could find that his due process rights were violated by any defendant.10

4. Mr. Long's Time at Westville: December 2021 – May 2022

With his dismissal of the Westville caseworkers earlier in the litigation, Mr.

Long has not now named any defendants who allegedly improperly denied him

due process or retaliated against him with respect to his placement in DW-ARSH

10 The Court notes that whether Defendants Joseph and Sanford retaliated against Mr.

Long, which led to his placement in ARSH at New Castle, is a separate and distinct

question from whether Mr. Long's due process rights were violated with respect to his

continued placement in ARSH. See Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005)

("due process and retaliation claims are analyzed differently. Conduct that does not

independently violate the Constitution can form the basis for a retaliation claim, if that

conduct is done with an improper, retaliatory motive.").

while at Westville for six months. This also was a relatively brief continuation of

his segregation placement that had begun at New Castle after Mr. Long had

accrued numerous conduct violations there. Mr. Long received seven-day

periodic reviews. They were admittedly perfunctory, even more so than what he

received at New Castle, and they sometimes refer to Mr. Hendrix by name, i.e.

that Mr. Long was to remain in DW-ARSH "until further notice per Mr. Hendrix."

Dkt. 67-2 at 69. But again, these reviews are tied to a placement in segregation

following repeated misconduct at New Castle. Additionally, Mr. Long has not

provided any testimony or evidence regarding the conditions of confinement at

Westville in particular. The Court concludes that no reasonable jury could find

a violation of Mr. Long's due process rights by any defendant during this time

frame.

IV.

Conclusion

Defendants French, Sevier, Hendrix, Basinger, Dickerson, and Fitch are

entitled to summary judgment on Mr. Long's retaliation claims, so their

summary judgment motions on those claims are granted. As to Defendants

Peterson, Marshall, Sanford, and Joseph, there are triable issues of fact

regarding whether they retaliated against Mr. Long, and their summary

judgment motions on those claims are denied.

For Mr. Long's due process claims, there are triable issues of fact on those

claims against Defendants Basinger, Hendrix, and Marshall related to his time

in segregation at Wabash Valley, and against Defendants Sevier and French

related to his time in the "transition unit" at New Castle. Defendants are

otherwise entitled to summary judgment on the due process claims—that is,

related to Mr. Long's time in ARSH at New Castle and his time at Westville. Dkts.

[62] and [65] are granted in part and denied in part in accordance with this

order.

The clerk is directed to terminate defendants Dickerson and Fitch as

defendants on the docket as they are entitled to summary judgment on all claims

against them. No final judgment will issue at this time.

The Court prefers that Mr. Long be represented by counsel for the

remainder of this action. The clerk is directed to send Mr. Long a motion for

assistance recruiting counsel with his copy of this Order. Mr. Long has thirty

days from the date of this Order to file a motion for counsel using this form

motion or to inform the Court that he wishes to proceed pro se. Once the motion

has been ruled on and counsel has been recruited, the magistrate judge is asked

to schedule a telephonic status conference to discuss further proceedings.

SO ORDERED.

Date: 1/21/2025 omnis tanbove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

All ECF-registered counsel of record via email

COURTNEY LONG

108201

INDIANA STATE PRISON

INDIANA STATE PRISON

Electronic Service Participant — Court Only

36

Magistrate Judge Baker's Chambers