ALKHALIDI v. PURCELL et al

Filing 42

ENTRY Discussing Complaint, Denying Motion to Amend and Directing Further Proceedings. The clerk is directed to add Beverly Gilmore as a defendant on the docket. The motion to amend [dkt. 30] is denied. The complaint has been screened pursuant to 2 8 U.S.C. § 1915A and shall proceed as submitted with one exception: the "other unknown defendants" are dismissed. The clerk is directed to terminate this defendant on the docket. The clerk is designated to issue and serve process on the defendants Beverly Gilmore and S. Fleener. The Indiana Department of Corrections is ordered to provide the last known addresses for former employees, defendants B. Phillips and Kenneth Stone. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 7/1/2015. Distrbution made. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ABDULLAH ALKHALIDI,
Plaintiff,
v.
R. PURCELL SGT.,
P. ARNOLD SGT.,
K. STONE OFFICER,
B. PHILLIPS OFFICER,
S. BURRIS OFFICER,
GILSTRAP OFFICER,
EWERS OFFICER,
LAMB OFFICER,
S. FLEENER LPN,
LENNINGS NURSE,
RICHARD BROWN,
C. NICKOLSON LT.,
JERRY SNYDER,
OTHER UNKNOWN DEFENDANTS,
Defendants.

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Case No. 1:14-cv-01392-JMS-TAB

Entry Discussing Complaint, Denying Motion to Amend
and Directing Further Proceedings
I. The Complaint
The complaint filed by counsel on August 23, 2014, alleges that 13 defendants, along with
“other unknown defendants” violated the Alkhalidi’s Eighth Amendment rights (as incorporated
through the Fourteenth Amendment) and the Indiana Tort Claims Act while he was incarcerated
at Wabash Valley Correctional Facility (“Wabash Valley”).
These thirteen defendants did not include Case Manager Beverly Gilmore. See Myles v.
United States, 416 F.3d 551 (7th Cir. 2005) (to make someone a party the plaintiff must specify

him in the caption and arrange for service of process; the court cannot add litigants on its own
motion). Rule 10 of the Federal Rules of Civil Procedure states that the “title of the complaint must
name all the parties. . . .” A “party” is “[o]ne by or against whom a lawsuit is brought.” See U.S.
ex rel Eisenstein v. City of New York, 129 S. Ct. 2230, 2234 (2009)) (citing Black’s Law Dictionary
1154 (8th ed. 2004)). However, the plaintiff is now proceeding pro se and the proposed amended
complaint along with the text of the original complaint make clear that Beverly Gilmore was
intended as a defendant in this action. Accordingly, the original complaint is understood to include
Beverly Gilmore as a defendant and the clerk is directed to update the docket to include this
defendant.
The complaint alleges that on August 23, 2012, Alkhalidi’s legs were shackled and his
hands cuffed behind his back. His body was connected to a lead strap under the control of Sgt. P.
Arnold. Sgt. Arnold pulled the strap causing Alkhalidi to fall head first against the floor and
defendants Sgt. Arnold, Sgt. Purcell, and Officers Stone, Phillips, Burris, Gilstrap, Ewers and
Lamb then struck, kicked and stomped on Alkhalidi causing injuries in violation of the Eighth
Amendment and the Indiana Tort Claims Act.
Following the attack, defendants Nurses Fleener and Teresa Lennings (now Teresa Allen)
observed or examined Alkhalidi but failed to provide him any medical attention in violation of the
Eighth Amendment.
Superintendent Richard Brown, Lt. Nickolson, Jerry Snyder and Beverly Gilmore
allegedly had supervisory authority at Wabash Valley and approved a policy and practice of
correctional officers using excessive force against Alkhalidi and other offenders. These
supervisory defendants allegedly failed to properly train correctional officers regarding the use of
excessive force against offenders, all in violation of the Eighth Amendment.

Alkhalidi seeks injunctive relief from Superintendent Richard Brown, in his official
capacity, to secure additional medical treatment. He also seeks compensatory and punitive
damages as well as costs and fees.
II. Motion to Amend
A.
Now before the Court is the plaintiff’s pro se motion to amend the complaint [dkt. 30] filed
on April 24, 2015 (the date plaintiff placed the motion into institutional mail). See dkt. 40 (notice
of mailing). The amended complaint seeks to add additional claims and defendants to this action.
In addition to the fourteen defendants named in the original complaint (including defendant
Gilmore), he names six new defendants. Two of these defendants are employed at Wabash Valley
Correctional Facility. Three are employed at New Castle Correctional Facility and one is a
statewide defendant. The new defendants include Correctional Officers Steve Carpenter,
Chapman, and E. Shelly, as well as, Lt. Stormes, Warden Butts and Final Reviewing Authority
Robert Bugher.
B.
The defendants opposed the motion to amend. First, the defendants argue that the deadline
for all motions for leave to amend the pleadings and/or to join additional parties has passed. But
accepting the plaintiff’s representations in his notice [dkt. 40] as true, the motion to amend was
filed prior to the April 27, 2015, deadline. Pursuant to the “prison mailbox rule,” a pro se prisoner’s
complaint is deemed filed when it is handed over to prison staff for mailing, not on the date it is
received by the clerk of the court (which in this case was April 30, 2015). See Houston v. Lack,
487 U.S. 266, 275-76 (1988); Ingram v. Jones, 507 F.3d 640, 643-45 (7th Cir. 2007); Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008). The motion is therefore considered timely.

Rule 15(a) of the Federal Rules of Civil Procedure states that “leave shall be freely given
when justice so requires,” but the Court will not allow the plaintiff to amend his complaint when
to do so would be futile. Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993) (citations omitted).
The defendants argues that that is the case here. First, they argue that the new allegations all relate
to disciplinary charges, conduct hearings, and the grievance and appeals processes, and all are
unrelated to the incident, which is the subject of his Complaint. In support of this conclusion, the
defendants note that three of the newly proposed Defendants (Stormes, E. Shelly, and Butts) are
employees of New Castle Correctional Facility, and thus, could not have been involved in the
incident which is the subject of the Complaint, which occurred at Wabash Valley Correctional
Facility. In addition, they argue, the allegations relating to the grievance or appeals processes are
not appropriate subjects for this cause of action and are barred by Heck v. Humphrey, 512 U.S.
477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) (finding § 1983 action alleging due
process violations for procedures used in disciplinary hearing that resulted in deprivation of goodtime credits where prisoner’s claim of deceit and bias on part of hearing officer necessarily implied
invalidity of disciplinary conviction should be dismissed).
C.
“Although leave to amend a complaint should be freely granted when justice so requires,
. . . the district court need not allow an amendment when there is undue delay, bad faith, dilatory
motive, undue prejudice to the opposing party, or when the amendment would be futile.” Bethany
Phamacal Co. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001). “An amendment is futile if the
added claim would not survive a motion for summary judgment.” Id., 241 F,3d at 861. Allowing
the newly added claims are defendants to proceed would be futile for the reasons set forth below.

The claims alleged against Correctional Officer Steve Carpenter or Correctional Officer
Chapman are subject to dismissal because there is no allegation of wrongdoing on their part.
“Where a complaint alleges no specific act or conduct on the part of the defendant and the
complaint is silent as to the defendant except for his name appearing in the caption, the complaint
is properly dismissed.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); see Black v. Lane,
22 F.3d 1395, 1401 and n.8 (7th Cir. 1994)(district court properly dismissed complaint against one
defendant when the complaint alleged only that defendant was charged with the administration of
the institution and was responsible for all persons at the institution).
The amended complaint alleges that Alkhalidi’s due process rights were violated based on
the handling of his disciplinary charges. The amended complaint alleges that E. Shelly allegedly
failed to call two witnesses requested by Alkhalidi during the screening of his disciplinary action.
Lt. Storms allegedly failed to provide Alkhalidi with the video evidence he requested. Warden
Butts and Final Reviewing Authority Robert Bugher allegedly denied Alkhalidi’s administrative
appeals of his disciplinary conviction. In addition Bugher alleged retaliated against Alkhalidi by
imposing sanctions which included punitive segregation and the loss of earned credit time.
These allegations fail to state a claim upon which relief may be granted. “Even assuming
fraudulent conduct on the part of prison officials, the protection from such arbitrary action is found
in the procedures mandated by due process.” Lagerstrom v. Kingston, 463 F.3d 621, 625 (7th Cir.
2006) (quoting McPherson v. McBride, 188 F.3d 784, 787 (7th Cir. 1999); see also Hanrahan v.
Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (“We find that an allegation that a prison guard planted
false evidence which implicates an inmate in a disciplinary infraction fails to state a claim for
which relief can be granted where the procedural due process protections as required in Wolff v.
McDonnell, [418 U.S. 539, 558 (1974)] are provided.”); Newsome v. McCabe, 256 F.3d 747, 751-

52 (7th Cir. 2001) (holding that no federal constitutional claim – in particular none premised on
substantive due process – exists for “malicious prosecution”). Further, merely being placed in a
disciplinary unit, or being confined under conditions more onerous than conditions in other
housing unit of the jail, does not violate the guarantee of due process. Miller v. Dobier, 634 F.3d
412, 414-15 (7th Cir. 2011).
Finally, the complaint alleges that as a result of the defendants’ actions he was ultimately
sanctioned with the loss of 270 days of earned credit time. Such a claim is barred by Heck v.
Humphrey, 512 U.S. 477 (1994), which “forbids a prisoner in his civil rights case to challenge a
finding in his criminal or prison-discipline case that was essential to the decision in that case; if he
insists on doing that, the civil rights case must be dismissed.” Moore v. Mahone, 652 F.3d 722,
723 (7th Cir. 2011) (citing Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003)).
Because the proposed amendments to the Complaint are futile, the motion to amend [dkt.
30] is denied.
III. Service of Process
The Entry of April 6, 2015, noted that four defendants have not appeared by counsel and
there is no evidence that they have been properly served. These defendants include 1) “other
unknown defendants,” 2) S. Fleener, 3) B. Phillips, and 4) K. Stone. Alkhalidi was given the
opportunity to show cause why these defendants should not be dismissed consistent with Rule
4(m) of the Federal Rules of Civil Procedure. In response Alkhalidi argues that he is now pro se
and requires the Court’s assistance in serving the defendants. He also provided additional details
regarding where service could be effected.
Given the inclusion of Beverly Gilmore as a defendant and the plaintiff’s incarcerated
status, the clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and serve process on

the defendants 1) Beverly Gilmore; and ) S. Fleener, in the manner specified by Fed. R. Civ. P.
4(d)(1). Process shall consist of the complaint, applicable forms and this Entry.
Consistent with the Entry of April 6, 2015, “other unknown defendants,” are dismissed
without prejudice pursuant to Rule 4(m). In addition, “it is pointless to include [an] anonymous
defendant[ ] in federal court; this type of placeholder does not open the door to relation back under
Fed.R.Civ.P. 15, nor can it otherwise help the plaintiff.” Wudtke v. Davel, 128 F.3d 1057, 1060
(7th Cir. 1997) (internal citations omitted).
Counsel for the Indiana Department of Corrections, through defendant Superintendent
Richard Brown, in his Official Capacity, is ordered to provide the last known addresses for former
employees, defendants B. Phillips and Kenneth Stone. These addresses may be filed under seal
and should be submitted within 28 days from the date this Entry is docketed.
IV. Conclusion
The clerk is directed to add Beverly Gilmore as a defendant on the docket.
The motion to amend [dkt. 30] is denied.
The complaint has been screened pursuant to 28 U.S.C. § 1915A and shall proceed as
submitted with one exception: the “other unknown defendants” are dismissed. The clerk is
directed to terminate this defendant on the docket.
The clerk is designated to issue and serve process on the defendants Beverly Gilmore and
S. Fleener.

The Indiana Department of Corrections is ordered to provide the last known addresses
for former employees, defendants B. Phillips and Kenneth Stone.
IT IS SO ORDERED.

07/01/2015
Date: __________________

Distribution:
Beverly Gilmore
849 W. Washington St.
Sullivan, IN 47882
S. Fleener
205 Sunrise Dr.
Allen Dale, IL 62410
All Electronically Registered Counsel
ABDULLAH ALKHALIDI
DOC # 104113
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362