GORE v. CORRECTIONAL MEDICAL SERVICE et al

Filing 111

ORDER. The motion to dismiss [dkt. 98] is granted and the State Defendants, the IDOC and the Commissioner of the IDOC, are dismissed as defendants from this action. Although the Court is dismissing the State Defendants and any contract claim again st them, this ruling should in no way be read to prohibit Mr. Gore from pursuing a contract claim against Corizon. The clerk is instructed to update the docket to reflect the dismissal of the Indiana Department of Correction and the Commissioner of the Indiana Department of Correction. Signed by Judge Jane Magnus-Stinson on 3/22/2016. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JERRY A. GORE,
Plaintiff,
v.
INDIANA DEPARTMENT OF CORRECTION,
COMMISSIONER, INDIANA DEPARTMENT
OF CORRECTION, CORIZON HEALTH,
DR. WILLIAM WOLFE,
NURSE C. MEYERS,
Defendants.

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) Case No. 1:13-cv-0241-JMS-DML
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Entry Discussing Motion to Dismiss
Jerry Gore (“Mr. Gore”) brings this case against the defendants, asserting a 42 U.S.C. §
1983 claim, a state law negligence claims against Dr. William Wolfe and Nurse Christine Meyers,
and a contract claim against the Indiana Department of Correction and Corizon. The Indiana
Department of Correction (“IDOC”), the Commissioner of the Indiana Department of Correction,
and Sherman Turner (“State Defendants”) have moved to dismiss the second amended complaint
against them. Mr. Gore has opposed that motion and the State Defendants have replied. For the
reasons explained in this Entry, the Motion to Dismiss State Defendants is [dkt. 98] is granted.
A. Background
Mr. Gore filed the initial complaint in this action on February 11, 2013, against
Correctional Medical Service, Corizon, Dr. Wolfe and Nurse Meyer. [dkt. 1]. On January 24, 2014,
this Court dismissed the claims against Correctional Medical Service and Corizon and allowed the
action to proceed against Dr. Wolfe and Nurse Meyer. On November 19, 2014, Mr. Gore filed an
amended complaint adding Officer Sherman Turner as a defendant and again added Corizon as a

defendant. The Court dismissed Officer Turner and Corizon as defendants, and allowed the action
to proceed against Dr. Wolfe and Nurse Meyer. [dkt. 48]. The Court granted Mr. Gore’s motion to
reconsider on January 29, 2015, and added an Eighth Amendment claim against Corizon. [dkt. 51].
On October 20, 2015, Mr. Gore, by counsel, filed a seconded amended complaint against
the IDOC, the Commissioner of the IDOC, Officer Sherman Turner 1, Corizon, Dr. Wolfe, and
Nurse Meyers. [dkt. 79]. In the second amended complaint, Mr. Gore’s allegations center around
an event that took place on July 6, 2012. [dkt. 79, at pp. 5-10]. As to the State Defendants, Mr.
Gore alleges that Officer Turner was acting within the scope of his employment when the
deprivation occurred, thus the IDOC and the Commissioner of the IDOC are liable for any resulting
damages.
B. Legal Standard
The State Defendants have filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) arguing that Mr. Gore’s claim is barred by the applicable statute of limitations
and Eleventh Amendment Immunity. Courts should usually refrain from granting Rule 12(b)(6)
motions on affirmative defenses. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). “Rule
12(b)(6) tests whether the complaint states a claim for relief, and a plaintiff may state a claim even
though there is a defense to that claim. But when all relevant facts are presented, the Court may
properly dismiss a case before discovery—typically through a Rule 12(c) Motion for Judgment on
the Pleadings. 2—on the basis of an affirmative defense.” See Id.; Brooks v. Ross, 578 F.3d 574,

1

Officer Turner was dismissed from this action on February 2, 2016, pursuant to a motion to
dismiss filed by Mr. Gore. [dkts. 100, 103].
“Though district courts have granted Rule 12(b)(6) motions on the basis of affirmative
defenses, [the Seventh Circuit] has repeatedly cautioned that the proper heading for such motions
is Rule 12(c), since an affirmative defense is external to the complaint.” Brownmark Films, LLC
v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012).
2

579 (7th Cir. 2009) (approving of granting motions to dismiss based on the statute of limitations
when “the relevant dates [that establish the defense] are set forth unambiguously in the
complaint.”).
In ruling on a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff, accepting all well-pleaded factual allegations as true and drawing all reasonable
inferences from those allegations in favor of the plaintiff. Lee v. City of Chicago, 330 F.3d 456,
459 (7th Cir. 2003). Thus, a complaint should only be dismissed pursuant to Rule 12(b)(6) when
“it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.
2007). Additionally, the Court may not rely upon evidence and facts outside of those alleged in
the complaint in ruling on a motion to dismiss.
C. Discussion
Statute of Limitations
“While complaints typically do not address affirmative defenses, the statute of limitations
may be raised in a motion to dismiss if ‘the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense.’ United States v. Lewis, 411 F.3d 838, 842 (7th
Cir.2005). (Technically, one might see this as a motion for judgment on the pleadings under Rule
12(c) rather than a motion under Rule 12(b)(6), but the practical effect is the same.).” Brooks v.
Ross, 578 F.3d 574, 579 (7th Cir. 2009). Although § 1983 contains no statute of limitations, under
the terms of Wilson v. Garcia, 471 U.S. 261 (1985), if there is no federal statute of limitations, the
most closely analogous state statute of limitations is borrowed. The statute of limitations applicable
to the personal injury claim asserted against the State Defendants in the complaint is two years.

Ind. Code § 34-11-2-4. While state law determines the length of the limitations period, federal law
determines the date of accrual of the cause of action. Logan v. Wilkins, 644 F.3d 577, 581-82 (7th
Cir. 2011). For § 1983 purposes, a claim accrues when the plaintiff knows or should know that his
or her constitutional rights have been violated. Id. The Seventh Circuit has found that the accrual
date for a claim of cruel and unusual punishment where the plaintiff alleges he was denied
treatment continues for as long as the defendants have the power to do something about his
condition. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001).
Here, the claims against the State Defendants stem from an incident that occurred on July
6, 2012. On that day, when the temperature was abnormally high, Officer Turner placed Mr. Gore
in a very hot shower. Mr. Gore passed out from the heat. Immediately after, Officer Turner
provided Mr. Gore with a cold rag and water, placed him in front of a fan and called for medical
help. There are no allegations in the second amended complaint that the State Defendants
continuously denied any requests for medical help.
In response to the motion to dismiss, Mr. Gore alleges that the claims against the State
Defendants are not barred by the statute of limitations because he seeks declaratory relief. [dkt.
101, at p. 3]. However, declaratory relief cannot be used “solely to adjudicate [a defendant’s] past
conduct” and not to affect future behavior. Simso v. State of Connecticut, 2006 WL 3422194, at
*8 (D.Conn. Nov. 28, 2006); see also Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009
WL 1770145, at *3 (E.D. Wis. 2009) (dismissing claim for declaratory judgment where complaint
alleges only past illegal conduct). Mr. Gore’s injury occurred on July 6, 2012, and the complaint
alleges a constitutional deprivation only on that date. Mr. Gore is not permitted to add claims for
declaratory and injunctive relief solely to circumvent a statute of limitations defense. He did not

file suit against the State Defendants until October 20, 2015. As such, the § 1983 claims against
the State Defendants are barred by the statute of limitations.
Eleventh Amendment
Next, the State Defendants argue the Eleventh Amendment bars the § 1983 and contract
claims against them. Eleventh Amendment immunity bars suits against states and their agencies
regardless of the relief sought, whether damages or injunctive relief. Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 58 (1996); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,
102 (1984).
Ex parte Young established an exception to states’ sovereign immunity under the Eleventh
Amendment permitting suits for prospective and injunctive relief. Ex parte Young, 290 U.S. 123,
123 (1908). A plaintiff may file “suit[ ] against state officials seeking prospective equitable relief
for ongoing violations of federal law. . . .” Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997);
see also Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin.
603 F.3d 365, 371 (7th Cir. 2010) (discussing exceptions to the Eleventh Amendment’s bar against
actions in federal court against state officials acting in their official capacities). Here, however, an
inquiry into the complaint reveals that it does not allege an ongoing violation of federal law. In
fact, Mr. Gore specifically alleges the defendants breached their contract by “their failures to
provide Gore with adequate medical services resulting from his heat stroke . . . [he] and suffered
injuries as a direct and proximate cause of the breach.” [dkt. 79, at p. 14]. The circumstances that
resulted in Mr. Gore’s heat stroke occurred on July 2, 2012. As a result, the § 1983 and contract
claims against the State Defendants do not seek prospective relief and are barred by the Eleventh
Amendment.

The motion to dismiss [dkt. 98] is granted and the State Defendants, the IDOC and the
Commissioner of the IDOC, are dismissed as defendants from this action. Although the Court is
dismissing the State Defendants and any contract claim against them, this ruling should in no way
be read to prohibit Mr. Gore from pursuing a contract claim against Corizon.
The clerk is instructed to update the docket to reflect the dismissal of the Indiana
Department of Correction and the Commissioner of the Indiana Department of Correction.
IT IS SO ORDERED.

Date: March 22, 2016

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

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