PENDER v. PECKHAM et al

Filing 47

ORDER granting in part and denying in part Defendants' 27 Motion to Dismiss for Failure to State a Claim. The Motion is GRANTED to the extent that any claims for damages against Defendants in their official capacities and Ms. Pender's equal protection claims are dismissed. The motion is in all other respects DENIED. A separate order directing the development of this action shall issue. Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 8/5/2015. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SARAH JO PENDER,
Plaintiff,
vs.
STEPHANIE PECKHAM,
JAMES BASINGER,
ED BUSS,
STEVE MCCAULEY,
JANET O’NEAL,
LESLIE JOHNSON,
SHIRLEY WASHINGTON,
VANESSA TOLBERT,
MICHAEL WILKERSON,
STANLEY KNIGHT,
MICHAEL OSBURN,
BRUCE LEMMON,
Defendants.

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Case No. 1:14-cv-01287-TWP-DML

ENTRY DISCUSSING MOTION TO DISMISS
This matter is before the Court on Defendant’s Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). (Dkt. 27). Plaintiff Sarah Jo Pender (“Ms. Pender”), an inmate at the
Indiana Women’s Prison (“IWP”), brings this action pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated her constitutional rights when she was confined to the Special Housing Unit
(“SHU”) at that facility. For the reasons stated below the Motion is DENIED in part and
GRANTED in part.
I. Motion to Dismiss Standard
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
is to test the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chi.

Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The standard for assessing the procedural
sufficiency of pleadings is imposed by Federal Rule of Civil Procedure 8(a)(2), which requires “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, although
the complaint need not recite “detailed factual allegations,” it must state enough facts that, when
accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). A claim is facially plausible when the plaintiff pleads facts
sufficient for the Court to infer that the defendant is liable for the alleged misconduct. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Twombly/Iqbal standard “is not akin to a ‘probability
requirement’, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556). By comparison, a complaint that merely contains “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy
the factual plausibility standard. Twombly, 550 U.S. at 555.
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 Chi., 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.
II. Discussion
Defendants move for dismissal of each of Ms. Pender’s claims. For the following reasons,
the motion to dismiss is denied in all but one respect.

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A. Official Capacity Claims
The Defendants Stephanie Peckham, James Basinger, Ed Buss, Steve Mccauley, Janet
O’neal, Leslie Johnson, Shirley Washington, Vanessa Tolbert, Michael Wilkerson, Stanley
Knight, Michael Osburn, Bruce Lemmon (collectively the “Defendants”) first move to dismiss
all claims against them in their official capacity as employees of the Indiana Department of
Correction. Defendants argue that the official capacity claims would in essence be against the
State of Indiana and that such claims are barred by the Eleventh Amendment to the United States
Constitution and the doctrine of sovereign immunity. See Kentucky v. Graham, 473 U.S. 159,
165-67 and n.14 (1985) (suit for damages against state officer in official capacity is barred by the
Eleventh Amendment). The Defendants are correct that claims for damages against a state
official in his or her official capacity are barred by the Eleventh Amendment. Id. Therefore, any
claims for damages against the Defendants in their official capacities are dismissed.
To the extent the Defendants can be understood to seek dismissal of official capacity claims
against them for injunctive relief, the motion to dismiss must be DENIED because a claim for
injunctive relief against a state official in his or her official capacity is viable. See Indiana
Protection and Advocacy Services v. Indiana Family and Social Services Admin., 603 F.3d 365,
371 (7th Cir. 2010) (“Because the complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective the plaintiff could have named individual state officials
as defendants in the lawsuit for injunctive relief, but he did not do so.”); Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 n.10 (1989) (“Of course a state official in his or her official capacity,
when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions
for prospective relief are not treated as actions against the State.’”) (citing Kentucky v. Graham,
473 U.S., at 167, n. 14; Ex parte Young, 209 U.S. 123, 159-160 (1908)).

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B. Claims 1 and IV1: Eighth Amendment Claims
In Claims I and IV of her complaint, Ms. Pender alleges Defendants McCauley, Peckham,
Washington, Buss, Lemmon, Knight, Osburn, Basinger, Tolbert, Wilkerson, and Johnson violated
her Eighth Amendment right to be free from cruel and unusual punishment after they were made
aware of the harm to her mental health resulting from conditions in the SHU and took no steps to
alleviate the conditions.
These Defendants move for dismissal of this claim arguing that they are not medical
providers and therefore not responsible for Ms. Pender’s medical care. But Ms. Pender’s claim is
not simply that she received inadequate care for the mental health problems she suffered while in
segregation or that Defendants failed in their supervisory responsibility over medical providers.
More specifically, her claim is that the Defendants personally “did not take action” after they “were
repeatedly made aware of the substantial current harm and risk of further harm to Pender’s mental
health” resulting from the conditions of the SHU. Broadly construed, this is not a claim that the
Defendants failed to administer medical care, but a claim that the Defendants violated her Eighth
Amendment rights because they were aware of the damage to Ms. Pender’s mental health caused
by her stay in the SHU, but did nothing to alter the conditions of her confinement.
Ms. Pender’s claim is that her prolonged confinement to the SHU caused and exacerbated
her mental illness and that Defendants exhibited deliberate indifference to her condition. Ms.
Pender has stated a claim for relief under the Eighth Amendment. See Townsend v. Cooper, 759
F.3d 678, 690 (7th Cir. 2014) (“‘[P]rolonged confinement in administrative segregation may
constitute a violation of the Eighth Amendment (and therefore the Fourteenth), depending on the
duration and nature of the segregation and whether there were feasible alternatives to that

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Ms. Pender has included two “Claim 3”s in her complaint. The second “Claim 3”, starting on page 8 of the
complaint, is identified in this Entry as Claim 4.
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confinement.’”) (quoting Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 666
(7th Cir. 2012)).
C. Claim III: Equal Protection
In Claim III, Ms. Pender alleges that defendants Buss, Lemmon, Knight, Basinger,
McCauley, Peckham, Johnson, Washington, and O’Neal supplanted IDOC policy utilized in
determining her SHU classification with an alternative process that was constitutionally deficient.
Ms. Pender asserts that this violated her Fourteenth Amendment right to equal protection because
she was singled out for a different classification process than other inmates.
Ms. Pender’s equal protection claim must be dismissed for failure to state a claim upon
which relief can be granted because she does not allege any basis for discrimination on the part of
any of the Defendants and a “person bringing an action under the Equal Protection Clause must
show intentional discrimination against him because of his membership in a particular class, not
merely that he was treated unfairly as an individual.” Herro v. City of Milwaukee, 44 F.3d 550,
552 (7th Cir. 1995) (internal quotation omitted).
D. Claim 2: Due Process
Finally, Ms. Pender claims that her continued SHU classification resulted from improper
classification reviews which denied her Fourteenth Amendment right to due process. The
Defendants argue that Ms. Pender’s Fourteenth Amendment due process claims must be dismissed
because Ms. Pender has failed to state the deprivation of a liberty interest.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that due process liberty
interests prohibit restraints which impose an “atypical and significant hardship on an inmate in
relation to the ordinary incidents of prison life.” Id. at 484. In determining whether an atypical and
significant hardship exists invoking due process, “both the duration and the conditions of the

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segregation must be considered.” Marion v. Columbia Correctional Inst., 559 F.3d 693, 698 (7th
Cir. 2009). “[I]f the conditions of segregation were significantly harsher than those in the normal
prison environment, then a year of [segregation] might count as a deprivation of liberty where a
few days or even weeks might not.” Id. (internal quotation omitted). Here, Ms. Pender alleges that
she spent 1,866 days in segregation and that during this time she had inadequate opportunities for
out-of-cell exercise, that she was subjected to excessive illumination, and that these conditions
exacerbated her mental illness. These allegations are sufficient at this stage to state a claim that
her continued confinement in the SHU violated her due process rights.
The Defendants go on to argue that Ms. Pender has failed to sufficiently allege that the
review process used to consider her maintained confinement in the SHU did not satisfy the
requirements of due process. “Prison officials must engage in some sort of periodic review of the
confinement of [inmates in administrative segregation].” Hewitt v. Helms, 459 U.S. 460, 477 n. 9
(1983) (abrogated on other grounds by Sandin, 515 U.S. at 484). “This review will not necessarily
require that prison officials permit the submission of any additional evidence or statements.” Id.
But when a due process liberty interest is at stake an inmate is entitled to “some informal, nonadversarial” procedures. Westefer v. Neal, 682 F.3d 679, 684-85 (7th Cir. 2012). Informal due
process under these circumstances requires a periodic review of the placement determination at a
frequency sufficient to ensure that “administrative segregation does not become ‘a pretext for
indefinite confinement.’” Id. (quoting Hewitt v. Helms, 459 U.S. 460, 477 n. (1983)). Ms. Pender
alleges that the defendants “routinely approv[ed] Pender’s continued SHU confinement and
willfully ignor[ed] Pender’s rights to due process by performing perfunctory reviews where the
outcome was pre-decided.” At this stage of the proceedings, the Court cannot say that Ms. Pender
has failed to state a due process claim based on her continued confinement in segregation.

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III. Conclusion
For the foregoing reasons, the Motion to Dismiss (Dkt 27) is GRANTED in part AND
DENIED in part. The Motion is GRANTED to the extent that any claims for damages against
Defendants in their official capacities and Ms. Pender’s equal protection claims are dismissed.
The motion is in all other respects DENIED. A separate order directing the development of this
action shall issue.
IT IS SO ORDERED.

Date: 8/5/2015

Distribution:
Sarah Pender
DOC #953968
Indiana's Women's Prison
2596 Girls' School Road
Indianapolis, IN 46214
All electronically registered counsel

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