Bishop v. Indiana Dept of Correction et al

Filing 8

OPINION AND ORDER: The court GRANTS the motion 4 for courts to read and consider certain cases; GRANTS Richard Bishop leave to proceed against M. Colvill and Grams in their individual capacities for compensatory and punitive damages for failing to protect him from the second attack by Woods on February 22, 2020, in violation of the Eighth Amendment; DISMISSES all other claims; DISMISSES Indiana Department of Correction, Dawn Buss, J. Nowatzke, Joshua Wallen, Houston, Ron Neal, and Pamela Bane ; DIRECTS the clerk to request Waiver of Service from (and if necessary, the United States Marshals Service to serve process on) M. Colvill and Grams at the Indiana Department of Correction, with a copy of this order and the complaint 2 , pursuant t o 28 U.S.C. § 1915(d); ORDERS the Indiana Department of Correction to provide the full name, date of birth, and last known home address of any defendant who does not waive service if it has such information; and ORDERS, pursuant to 42 U.S.C.
67; 1997e(g)(2), M. Colvill and Grams to respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this screening order. Signed by Chief Judge Jon E DeGuilio on 6/3/2021. (bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RICHARD BISHOP,
Plaintiff,
v.

CAUSE NO. 3:20-CV-1064-JD-MGG

INDIANA DEP’T OF CORRECTION, et
al.,
Defendants.
OPINION AND ORDER
Richard Bishop, a prisoner without a lawyer, filed a complaint under 42 U.S.C.
§ 1983 and state law. ECF 2. “A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A,
the court must review the merits of a prisoner complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief.
Bishop alleges that on February 22, 2020, he and another prisoner, Woods, were
fighting on the top tier of C Block of the Protective Custody Unit in the Indiana State
Prison. ECF 2 at ¶ 7. Officer Grams and Officer Colvill saw the two of them fighting and
yelled for them to stop. Id. at ¶ 8. Bishop requested that they let him out of his block so

that he could report his fear of Woods. Id. They allowed Bishop out of the block to the
officer’s cage, but they also allowed Woods to follow. Id.
Bishop was talking to the officers in the officer’s cage when Woods came up to
him and punched him in the head. ECF 2 at ¶ 10. Bishop fell and lost consciousness. Id.
Woods continued punching him in the face, causing him to have a seizure and other
facial injuries. Id. Grams and Colvill watched this happen and did not call for backup or
otherwise try to stop the assault. Id. at ¶ 11.
Under the Eighth Amendment, correctional officials have a constitutional duty to
protect inmates from violence. Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir. 2008).
But, “prisons are dangerous places. Inmates get there by violent acts, and many
prisoners have a propensity to commit more.” Id. Therefore, a failure-to-protect claim
cannot be predicated “merely on knowledge of general risks of violence in a detention
facility.” Brown v. Budz, 398 F.3d 904, 913 (7th Cir. 2005). Instead, the plaintiff must
establish “the defendant had actual knowledge of an impending harm easily
preventable, so that a conscious, culpable refusal to prevent the harm can be inferred
from the defendant’s failure to prevent it.” Santiago v. Wells, 599 F.3d 749, 756 (7th Cir.
2010), see also Klebanowski v. Sheahan, 540 F.3d 633, 639-40 (7th Cir. 2008). Bishop asked
the court to consider two particular cases, Peate v. McCann, 294 F.3d 879 (7th Cir. 2002),
and Jones v. Vululleh, No. 1:16-cv-1272, 2018 WL 1256796 (S.D. Ind. 2018), when
screening the complaint. ECF 4. Both cases contain specific factual scenarios about when
a prison guard’s response to a fight was deemed unreasonable and therefore
deliberately indifferent. Further factual development may establish that Grams and
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Colvill’s actions fit into those scenarios. But at the pleading stage, it is enough to
conclude that the facts alleged in the complaint state a plausible Eighth Amendment
claim that Grams and Colvill had actual knowledge of the impending harm and could
have easily prevented Bishop from being attacked by keeping him separate from
Woods.
In addition to the Eighth Amendment claim, Bishop also seeks to sue Grams and
Colvill for the state law tort of battery, arguing that they aided or induced the battery.
He contends they are responsible because they did not separate the two offenders
during the first fight, they allowed Woods to follow him out of C Block, and they did
not promptly call for backup or otherwise interfere during the second fight. ECF 2 at
¶ 13. However, because Grams and Colvill are government employees, Indiana law
strictly limits the circumstances in which they may be sued for state law claims. Even
though Bishop alleges he complied with the notice requirements of the Indiana Tort
Claims Act, Indiana law grants Grams and Colvill immunity from this state law claim.
The Indiana Tort Claims Act prohibits tort suits against government employees
personally for conduct within the scope of their employment. See Ind. Code § 34-13-35(b); see also Ball v. City of Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014) (“Under the
Indiana Tort Claims Act, there is no remedy against the individual employee so long as
he was acting within the scope of his employment.”). A plaintiff may sue a government
employee personally only if the government employee was acting outside the scope of
employment. To that end, the statute requires that a lawsuit against a government
employee allege one of the enumerated circumstances that takes an act outside the
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scope of employment: that the act or omission was criminal, clearly outside the scope of
employment, malicious, willful and wanton, or calculated to benefit the employee
personally. Ind. Code § 34-13-3-5(c). But Indiana defines the scope of employment
broadly. Under Indiana law, an individual is acting within the scope of his or her
employment if the conduct is “of the same general nature as that authorized, or
incidental to the conduct authorized.” Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450,
453 (Ind. 2000) (quoting Restatement (Second) Agency § 229 (1958)). “Even criminal acts
may be considered as being within the scope of employment if the criminal acts
originated in activities so closely associated with the employment relationship as to fall
within its scope.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quotation
marks omitted). There might be an exception for conduct “so outrageous as to be
incompatible with the performance of the duty taken.” Celebration Fireworks, 727 N.E.2d
at 452-53 (quotation marks omitted). But here, the acts Bishop identifies are closely
related to Grams and Colvill’s duties as a correctional officer; outside of the prison
context they would have no responsibility to intervene in a fight. See Smith v. Ind. Dep’t
of Corr., 871 N.E.2d 975, 986 (Ind. Ct. App. 2007) (affirming judgment on the pleadings
dismissing prisoner’s negligence claims against prison officers for injuries incurred
during a cell extraction because “[e]nforcing discipline and maintaining prison security
is clearly within the prison officers’ scope of employment”). Therefore, the state law
claims against Grams and Colvill must be dismissed.

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Bishop also names the Indiana Department of Correction (IDOC) as a defendant,
alleging both respondeat superior liability based on the actions of their employees and a
state law negligence claim. But IDOC is a department in the executive branch of Indiana
state government. See Ind. Code § 11-8-2-1. It is an arm of the state and entitled to share
in the state’s immunity under the Eleventh Amendment. See Burrus v. State Lottery
Comm’n of Ind., 546 F.3d 417, 420 (7th Cir. 2008). This means that IDOC cannot be sued
in federal court for state law claims unless the state has consented. See Tucker v.
Williams, 682 F.3d 654, 658 (7th Cir. 2012) (“The Eleventh Amendment provides states
with immunity from suits in the federal courts unless the State consents to the suit or
Congress has abrogated their immunity.”). Indiana has consented to suit in state court
for their torts under some circumstances. See Lowe v. N. Ind. Commuter Transp. Dist., 167
N.E.3d 290, 294 (Ind. Ct. App. 2021) (“[G]overnmental entities are subject to suit in
Indiana state courts for their torts, with certain enumerated exceptions” (emphasis
added)). But that consent does not extend to consent to be sued in federal court. See id.
at 294 n.5; Ind. Code § 34-13-3-5(f) (“This chapter shall not be construed as . . . consent
by the state of Indiana or its employees to be sued in any federal court . . ..”). Therefore,
the Indiana Department of Correction will be dismissed because Bishop cannot sue it in
federal court for a tort claim.
Bishop next alleges that he was retaliated against because of a grievance he filed
against Grams and Colvill. Bishop received two conduct reports, one for the first fight
and one for the second fight in front of the officer’s cage. ECF 2 at ¶¶ 17-18. At a
disciplinary hearing, the hearing officer consolidated the two conduct reports into one
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because she considered them to be one incident. Id. at ¶ 21. Bishop agreed to plead
guilty to a minor class C fighting offense for the first fight but maintained that he did
nothing wrong with regards to the second fight. Id. He says the hearing officer tricked
him into pleading guilty to a fight under the case number linked to the second fight. Id.
Even though both conduct reports were already addressed in one hearing, a
second disciplinary hearing was conducted by a different disciplinary hearing officer a
month later. ECF 2 at ¶ 24. Bishop alleges this hearing was in retaliation for a grievance
he filed against Grams and Colvill. At the hearing he was found guilty of a major class
B battery offense. Id. As part of the sanctions, Bishop’s commissary, phone, and contact
visitation privileges were restricted. Id. at ¶¶ 24, 25. The finding of guilt during the
second disciplinary hearing was overturned on appeal, but the six months of no contact
visits was never rescinded. Id. at ¶ 26.
Though Bishop alleges a First Amendment retaliation claim, the complaint does
not plausibly allege such a claim. A complaint must contain sufficient factual matter to
“state a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the pleaded factual content 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) (citing Twombly, 550 U.S. at 556).
“Factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555 (quotation marks, citations, and footnote omitted).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
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possibility of misconduct, the complaint has alleged—but it has not shown—that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quotation marks and brackets
omitted). Thus, “a plaintiff must do better than putting a few words on paper that, in
the hands of an imaginative reader, might suggest that something has happened to her
that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.
2010) (emphasis in original).
“To state a First Amendment claim for retaliation, a plaintiff must allege that (1)
he engaged in activity protected by the First Amendment; (2) he suffered a deprivation
that would likely deter First Amendment activity in the future; and (3) the First
Amendment activity was at least a motivating factor in the defendants’ decision to take
the retaliatory action.” Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (quotation
marks omitted). “A complaint states a claim for retaliation when it sets forth a
chronology of events from which retaliation may plausibly be inferred.” Zimmerman v.
Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (quotation marks omitted).
Here, there is no reasonable inference to connect the second disciplinary hearing
to the grievance. Bishop alleges that the grievance specialist started investigating the
grievance after the first disciplinary hearing was held, and it was during this
investigation that the retaliation plan was developed. ECF 2 at ¶¶ 22-26. However, there
is no plausible link alleged between Grams and Colvill (who were not involved in either
hearing) and the defendants Bishop alleges were involved in the plot: Wallen, the
grievance specialist; Dawn Buss, an assistant warden; Nowatzke, an assistant warden;
Houston, the second disciplinary hearing officer; Ron Neal, the prison warden; and
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Pamela Bane, the unit manager. Bishop alleges that retaliation can be inferred based on
the timing of the events—the second disciplinary hearing was held after Defendant
Wallen began investigating the grievance. The allegations are too broad to reasonably
infer that all of the defendants were acting in retaliation. In fact, the complaint contains
no mention of further contact with Grams of Colvill after the fight. Nothing links Gram
and Colvill, who would have the motivation to retaliate, to the prison officials involved
in the second disciplinary hearing.
Accordingly, Bishop will be allowed to proceed on a claim of failure to protect
against Grams and Colvill. However, in the relief section, Bishop asks for a permanent
injunction directing defendants to remove from his prison records the finding of guilt
related to the second fight and references to the six-month, no-contact visitation
sanction. This requested relief is unrelated to the claim he is proceeding on and
therefore does not belong in this action. See Steel Co. v Citizens for a Better Environment,
523 U.S. 83, 103-04 (1998) (noting that part of standing requirement is “a likelihood that
the requested relief will redress the alleged injury”). Nor can the court construe the
complaint to include a due process claim regarding the prison disciplinary hearing.
A prisoner has no due process rights at a prison disciplinary hearing unless the
resulting sanction deprives him of life, liberty, or property. See Scruggs v. Jordan, 485
F.3d 934, 939 (7th Cir. 2007). There is no allegation that Bishop was deprived of good
time credits (and if he were, he would be barred from challenging the hearing in a
§ 1983 action by Edwards v. Balisok, 520 U.S. 641 (1997)). Thus, a liberty interest is
implicated here only if the sanction creates an “atypical and significant hardship on the
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inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S.
472, 484 (1995). Inmates have no independent constitutional right to visitation or to
particular forms of visitation. See Ky. Dept. of Corrs. v. Thompson, 490 U.S. 454 (1989);
Smith v. Shettle, 946 F.2d 1250 (7th Cir. 1991). The temporary loss of visitation,
commissary, and phone privileges are not atypical hardships. See Hardaway v. Meyerhoff,
734 F.3d 740, 743-44 (7th Cir. 2013) (“[S]ix months of segregation is not such an extreme
term and, standing alone, would not trigger due process rights.” (citation omitted)).
Because Bishop has not alleged a protected liberty interest, the complaint does not state
a claim for a due process violation.
For these reasons, the court:
(1) GRANTS the motion (ECF 4) for courts to read and consider certain cases;
(2) GRANTS Richard Bishop leave to proceed against M. Colvill and Grams in
their individual capacities for compensatory and punitive damages for failing to protect
him from the second attack by Woods on February 22, 2020, in violation of the Eighth
Amendment;
(3) DISMISSES all other claims;
(4) DISMISSES Indiana Department of Correction, Dawn Buss, J. Nowatzke,
Joshua Wallen, Houston, Ron Neal, and Pamela Bane;
(5) DIRECTS the clerk to request Waiver of Service from (and if necessary, the
United States Marshals Service to serve process on) M. Colvill and Grams at the Indiana
Department of Correction, with a copy of this order and the complaint (ECF 2),
pursuant to 28 U.S.C. § 1915(d);
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(6) ORDERS the Indiana Department of Correction to provide the full name, date
of birth, and last known home address of any defendant who does not waive service if
it has such information; and
(7) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), M. Colvill and Grams to
respond, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 101(b), only to the claims for which the plaintiff has been granted leave to proceed in this
screening order.
SO ORDERED on June 3, 2021
/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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