PURVIS v. HENRY COUNTY DIVISION OF FAMILY RESOURCES

Filing 74

Entry on State Defendants' Motion for Summary Judgment - The state defendants have demonstrated entitlement to summary judgment on all claims against them. The October 18, 2016, motion for summary judgment, dkt. 56 , is granted. Plaintiff's motion in opposition, dkt. 69 , is denied. Final judgment consistent with this Entry shall now issue. (See Entry.) Signed by Judge Sarah Evans Barker on 5/17/2017. (JLS) (Main Document 74 replaced on 5/17/2017) (JLS).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WILLARD PURVIS,

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Plaintiff,
v.
INDIANA DEPARTMENT OF CHILD
SERVICES, et al.,
Defendants.

Case No. 1:15-cv-00563-SEB-MPB

Entry on State Defendants’ Motion for Summary Judgment
Defendants Indiana Department of Child Services and Ruth Phelps (collectively “state
defendants”) October 18, 2016, motion for summary judgment is before the Court. Plaintiff has
responded in opposition, and the state defendants have replied.
I. Summary Judgment Standard
Summary judgment should be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying” designated evidence which
“demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
Once the moving party has met its burden, the non-movant may not rest upon mere
allegations. Instead, “[t]o successfully oppose a motion for summary judgment, the non-movant
party must come forward with specific facts demonstrating that there is a genuine issue for trial.”
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir. 2008). “The non-movant will
successfully oppose summary judgment only when [he] presents definite, competent evidence to
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rebut the motion.” Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir. 2002) (internal
quotation and citation omitted).
In ruling on a summary judgment motion, the Court accepts as true the non-movant’s
evidence, draws all legitimate inferences in favor of the non-movant, and does not weigh the
evidence or the credibility of witnesses. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250. The
non-movant may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but
reliance on the pleadings alone is not sufficient to withstand summary judgment. Posey v. Skyline
Corp., 702 F.2d 102, 105 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the
outcome of the suit under the governing law. Anderson, 477 U.S. at 248. Irrelevant or unnecessary
facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must
be genuine. Fed. R. Civ. P. 56(c), (e). To establish a genuine issue of fact the non-movant “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The non-movant must
come forward with specific facts showing that there is a genuine issue for trial. Id. A summary
judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
II. Background
The facts are taken from the complaint and evidentiary materials submitted in support of
and opposition to summary judgment.
In 1995, plaintiff Willard Purvis was a sixteen-year-old minor who had been designated a
Child in Need of Services (“CHINS”) by defendant Indiana Department of Child Services

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(“DCS”), then known as the Division of Family and Children. Defendant DCS referred plaintiff to
a treatment provider in Henry County, Indiana, Mid-Town Mental Health of Henry County.
Mid-Town assigned defendant Darrell Hughes, its employee, to counsel plaintiff. Plaintiff alleges
that during the course of the counseling, Hughes began to make inappropriate comments and ask
sexually specific questions. Hughes also would touch plaintiff on the upper thigh during these
conversations. When plaintiff expressed concerns about this conduct to Hughes’s supervisor,
defendant Ruth Phelps, she did nothing about it, and told plaintiff to “pay it no mind.” Thereafter
Hughes sexually abused plaintiff on a number of occasions and used a Polaroid camera to take
plaintiff’s photograph while nude or during sexual acts. Plaintiff reported these sexual assaults to
Phelps, but was rebuffed when Phelps accused plaintiff of lying and said she did not want Hughes
smeared. She suggested that plaintiff “should move.” The sexual abuse continued, but after
plaintiff and his mother moved to Indianapolis, there was one more incident of sexual abuse before
it stopped. Plaintiff alleges he discussed the sexual abuse a third and final time with Phelps after
moving to Indianapolis, but, again, she did not believe him. Plaintiff was not a minor when he
moved to and lived in Indianapolis.
Nineteen years later, on May 30, 2014, plaintiff learned that Hughes had been arrested for
a sex offense. He alleges this news caused him to remember the incidents of his own sexual abuse,
which he had repressed and forgotten. Working with a mental health professional, plaintiff now
remembers approximately twenty incidents of sexual assault.
Plaintiff brought suit against defendants in state court on December 29, 2014, alleging
claims under 42 U.S.C. § 1983, 18 U.S.C. § 2255, and state law. The action was removed to this
Court on April 9, 2015, pursuant to 28 U.S.C. §§ 1441 & 1446. Plaintiff seeks monetary damages.

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During screening pursuant to 28 U.S.C. § 1915A, the Court dismissed plaintiff’s section 1983
claims, but allowed the section 2255 claim and pendant state law claims to proceed.
Plaintiff’s federal claim arises under Section 2255(a) of Title 18, United States Code, which
is a part of the Child Abuse Victims’ Rights Act of 1986. This particular section, enacted as part
of the Protection of Children Against Sexual Exploitation Act of 1978, provides:
In General.—
Any person who, while a minor, was a victim of a violation of section 1589, 1590,
1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423
of this title and who suffers personal injury as a result of such violation, regardless
of whether the injury occurred while such person was a minor, may sue in any
appropriate United States District Court and shall recover the actual damages such
person sustains and the cost of the suit, including a reasonable attorney’s fee. Any
person as described in the preceding sentence shall be deemed to have sustained
damages of no less than $150,000 in value.
The complaint does not specify which predicate section of section 2255 is applicable.
A primary purpose of the Child Abuse Victims’ Rights Act of 1986 was to reach crimes
related to child pornography. Pub. L. No. 99–500, § 703(a), 100 Stat. 1783 (listing only 18 U.S.C.
§§ 2251, 2252). Congressional findings describe section 2255 as an attempt to address the “multimillion dollar” child-exploitation industry, along with the “physiological, psychological, and
emotional harm caused by the production, distribution, and display of child pornography” and the
“lack [of] effective remedies under Federal law” available to “exploitation victims.” Id. at
§ 702(1)-(3).
An Entry of Default was entered against defendant Darrell Hughes, now an inmate in
federal prison, on June 6, 2016. Following discovery, the state defendants have moved for
summary judgment. Dkt. 56. Plaintiff has responded in opposition, dkt. 69, and the state
defendants have replied. Dkt. 71.

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III. Discussion
The state defendants move for summary judgment on several theories. The dispositive
theories will be discussed in turn.
A.

Statute of Limitations

A nineteen-year gap between the last incident giving rise to liability and the
commencement of a lawsuit raises statute of limitations concerns. The limitations period for
plaintiff’s federal claim is provided in the statute under which he sues:
Any action commenced under this section shall be barred unless the complaint is
filed within 10 years after the right of action first accrues or in the case of a person
under a legal disability, not later than three years after the disability.
18 U.S.C. § 2255(b).
In plaintiff’s complaint and in a discovery deposition filed with the summary judgment
motion, he alleges Hughes’s sexual assaults began in 1995, when plaintiff was sixteen years old,
and continued through 1998, when plaintiff was nineteen years old. Because Section 2255 provides
a cause of action only for juveniles, any sexual assault occurring after plaintiff turned eighteen
years old would not be covered. Thus Section 2255(b)’s ten-year limitations period would begin
to run on the date of the last sexual assault occurring while plaintiff was a juvenile. Although that
precise date is unknown, this issue can still be resolved by noting that plaintiff turned eighteen
years old on September 21, 1999. Ten years after that date – the latest possible limitations deadline
under any possible interpretation of the claims and statute – would be September 21, 2009.
Plaintiff’s federal claims, filed in December 2014, were at a minimum five years too late.
However, plaintiff contends he is entitled to toll the limitations period under the discovery
doctrine, because his repressed memory did not allow him to recall the sexual abuse until May 30,

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2014, when he learned of Hughes’s arrest. This action was filed approximately six months later.
Plaintiff argues he is entitled, therefore, on “equitable grounds,” to have the case proceed.
The discovery rule postpones the start of a limitations period until a plaintiff knows or
should have known of the claim. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.
1990). The parties have not cited to any Seventh Circuit authority applying the discovery rule and
repressed memory questions to actions under 18 U.S.C. § 2255. The Third Circuit, in Stephens v.
Clash, 796 F.3d 281 (3d Cir. 2015), held that the discovery rule indeed applies to section 2255
claims. Id. at 286-88. However, application of the discovery rule did not save that plaintiff’s
claims. Finding that the plaintiff knew or should have known that he was injured at the time of the
sexual assaults, the Third Circuit found the limitations period had expired and any repressed
memory issues did not invoke the discovery rule and save the lawsuit.
A plaintiff's ignorance regarding the full extent of his injury is irrelevant to the
discovery rule’s application, so long as the plaintiff discovers or should have
discovered that he was injured. Kach v. Hose, 589 F.3d 626, 635 (3d Cir. 2009)
(statute of limitations begins to run “even though the full extent of the injury is not
then known or predictable”) (quoting Wallace v. Kato, 549 U.S. 384, 391 (2007)).
“Were it otherwise, the statute would begin to run only after a plaintiff became
satisfied that he had been harmed enough, placing the supposed statute of repose in
the sole hands of the party seeking relief.” Wallace, 549 U.S. at 391.
796 F.3d at 288.
The Third Circuit noted that Stephens was “cognizant at all times of the sexual abuse” he
suffered, even though he might not have been aware of the full extent of his injuries. Id. at 289.
The statute of limitations ran from the time of the sexual abuse occurring while Stephens was a
minor and it was not tolled. Id.
This Court took the same approach in Ernstes v. Warner, 860 F. Supp. 1338, 1339 (S.D.
Ind. 1994) (rejecting a repressed memory argument, finding that a plaintiff repeatedly sexually

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abused from age thirteen to sixteen knew what was occurring and the discovery rule did not apply
to save his out-of-time action).
In the instant case, plaintiff knew at the time of his sexual abuse that it was occurring and
that it was wrong. He reported it to defendant Phelps, Hughes’ supervisor, twice while he was a
juvenile, and once after he turned eighteen and was living in Indianapolis. Dkt. 58-2, pp. 16, 20.
Plaintiff was aware of the sexual abuse during a time period when he was an adult, and he knew it
was wrong because he reported it to Phelps during her visit to his Indianapolis home.
The Court therefore finds that plaintiff knew or should have known that he had been injured
by Hughes, at least as recently as when he lived in Indianapolis. It is undisputed that plaintiff knew
when he was eighteen years old, in 1999, that he had been the victim of sexual abuse. This action
is time-barred, and summary judgment is granted.
B. Interstate Commerce Element
The state defendants also seek summary judgment on the basis that that plaintiff cannot
establish an interstate commerce element to his federal claim. The complaint does not specify
which predicate section triggers section 2255 liability, but a review of each section shows that
either the section is completely inapplicable to plaintiff’s allegations, see, e.g., 18 U.S.C. § 1591
(“Trafficking with respect to peonage, slavery, involuntary servitude, or forced labor”), or contains
an interstate transportation or federal property element. The three predicate sections most relevant
to plaintiff’s allegations, 18 U.S.C. §§ 2251, 2252, & 2252A, all contain the requirement of
interstate travel or an effect on interstate commerce. The state defendants contend there is no
evidence that satisfies the interstate commerce element.
The state defendants assert that all of plaintiff’s allegations are set in Indiana, and no
movement across state lines ever occurred. See dkt. 58-2, p. 26. They also assert that plaintiff’s

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allegations that he was photographed by Hughes are not followed by allegations that the
photographs were moved in or affected interstate commerce. There is no evidence about the type
of camera used, other than plaintiff’s initial assertion in his complaint that it was a Polaroid.
Plaintiff testified in his deposition that Hughes told him the pictures were sent to another person,
but plaintiff did not who the person was, where they were, or how the pictures were sent. The term
“mail” is not used. Dkt. 58-2.
Plaintiff concedes this point. In his response, plaintiff states that “at this time [plaintiff]
cannot present further evidence to support the commerce element . . . .” Dkt. 70, p. 1.
The interstate commerce element is not difficult to meet. It is sufficient to show, for
example, that child pornography images were produced with a camera that had traveled in
interstate commerce, the images were stored on a computer hard drive that had been manufactured
in another state or country, or the images had actually traveled in interstate commerce. See United
States v. Foley, 740 F.3d 1079, 1082 (7th Cir. 2014). In the instant case, however, there is no such
evidence. The state defendants have pointed to evidence demonstrating a lack of proof of that
element, and plaintiff has failed to come forward with evidence showing otherwise. The Court will
not make assumptions that the interstate commerce element has been or will be shown.
If a nonmoving party fails to prove an element of his claim, summary judgment is called
for. When this happens, as here, “there can be no genuine issue as to any material fact, since a
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); see Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990).
The state defendants’ motion for summary judgment on the ground that plaintiff has failed
to establish all of the necessary elements of his 18 U.S.C. § 2255 claim is therefore granted.

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C. State Law Claims
The state defendants seek summary judgment on plaintiff’s state law claims for assault,
sexual assault, intentional inflection of emotional distress, and negligent infliction of emotional
distress, on the grounds that plaintiff failed to comply with the Indiana Tort Claims Act (ITCA),
Ind. Code § 34-13-3-6. They contend that plaintiff has given no notice to the state as required by
the ITCA in order to maintain a claim against the state. An affidavit of Michael R. Ward, “the duly
authorized keeper of all of the notices of tort claims,” states that he has no records of plaintiff ever
filing a tort claim notice with the state. Dkt. 58, ex. 3. Plaintiff has not responded to this assertion
nor offered evidence otherwise.
The failure to file a tort claim with the state is bar to being able to sue the state or its
employees. Poole v. Clase, 476 N.E.2d 828, 831-32 (Ind. 1985). Accordingly, summary judgment
is granted for the state defendants and against plaintiff on the state law claims for failure to comply
with the ITCA.
IV. Conclusion
The state defendants have demonstrated entitlement to summary judgment on all
claims against them. The October 18, 2016, motion for summary judgment, dkt. [56], is
granted. Plaintiff’s motion in opposition, dkt. [69], is denied. Final judgment consistent with
this Entry shall now issue.
IT IS SO ORDERED.

5/17/2017
Date: _____________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:

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Electronically Registered Counsel
Willard Purvis
985367
Wabash Valley Correctional Facility
Electronic Service Participant – Court Only

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