JUSTICE, SR. v. LIEBEL et al

Filing 14

ENTRY Discussing Amended Complaint and Directing Further Proceedings - The RUILPA claim against defendant Liebel may proceed in this action. All other claims and defendants are dismissed pursuant to 28 U.S.C. § 1915A. Justise shall have throug h January 8, 2016, to show cause why the claims in Section III (C) and (E) should not be dismissed from this action. Justise shall have through January 8, 2016, to notify the Court whether he believes he has asserted any claim in his complaint whic h has not been discussed in this Entry. Defendant Liebel has already appeared in this action. He shall have thirty days from the date of this Entry to file an answer. No partial judgment shall enter at this time as to the claims resolved in this Entry. Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 12/9/2015.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHARLES E. JUSTISE, SR.,
Plaintiff,
vs.
DAVID LIEBEL, JERRY HUSTON,
KAREN RICHARDS, RON NEAL,
MARION COUNTY JAIL, JOHN DOE,
JAIL COMMANDER,
WILLIAM WILSON, MICHELLE METCALF,
Defendants.

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Entry Discussing Amended Complaint and Directing Further Proceedings
I. Screening
Plaintiff Charles Justise, Sr., (“Justise”) filed a civil rights complaint on October 28, 2015,
in the Marion County Circuit Court alleging that his constitutional rights were violated in multip le
ways by Defendants David Liebel, Jerry Huston, Karen Richards, Ron Neal, Marion County Jail,
John Doe, Jail Commander, William Wilson and Michelle Metcalf (collectively “the Defendants ”).
The Defendants removed the action to this Court on November 12, 2015 and Justise filed an
amended complaint on December 2, 2015. [dkt. 12].
In the amended complaint, Justise alleges the following claims: 1) a denial of access to the
Indiana courts by the Marion County Jail Commander with respect to a direct appeal of his 2007
state court conviction in violation of the First and Fourteenth Amendments; 2) a denial of access
to the courts to file a belated appeal in a criminal matter by defendants Huston and Richards; 3)
denial of access to the courts regarding a civil lawsuit by defendants Huston and Richards; 4) a
violation of his rights under the Fourteenth Amendment Equal Protection by defendants Wilson

and Neal because he is allegedly not receiving many of the “benefits” other inmates at the State
Prison receive, such as the privilege to purchase an Xbox 360, access to the weight room, large
fans, and access to a microwave oven that fewer inmates have access to; 5) a violation of his
religious freedom under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)
because defendant Liebel and the Indiana Department of Correction (“IDOC”) does not recognize
atheism as a religion; and 6) a violation of his rights under the First Amendment and a state law
claim for destruction of property when defendant Metcalf allegedly destroyed photographs his
mother sent him and confiscated nude photos to which he alleges he is entitled to possess.
Because Justise is a “prisoner” as defined by 28 U.S.C. § 1915(h) the Court has an
obligation under 28 U.S.C. § 1915A to screen his complaint and must dismiss the complaint if it
is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a
defendant who is immune from such relief. In determining whether the complaint states a claim,
the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To
survive dismissal under federal pleadings standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that 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). Pro se complaints such as that filed by Justise are
construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.
Obriecht v. Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir. 2008). Nonetheless, “[p]ro se litigants are
masters of their own complaints and may choose who to sue-or not to sue,” Myles v. United States,
416 F.3d 551, 552 (7th Cir. 2005), and the Court may not rewrite a complaint to include claims

that were not presented. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999); Small v. Endicott, 998
F.2d 411, 417-18 (7th Cir. 1993).
Justise’s claims are brought pursuant to 42 U.S.C. § 1983, federal statutes, and state law.
A cause of action is provided by 42 U.S.C. § 1983 against “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory, . . . subjects, or causes
to be subjected, any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of
the United States. Section 1983 is not itself a source of substantive rights; instead, it is a means for
vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989)
(citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The initial step in any § 1983 analysis
is to identify the specific constitutional right which was allegedly violated. Id. at 394; Kernats v.
O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994); see also Gossmeyer v. McDonald, 128 F.3d 481,
489-90 (7th Cir. 1997). Here, Justise alleges a violation of his religious freedom under RLUIPA,
his rights under the First and Fourteenth Amendments, and state law. He seeks monetary relief and
injunctive relief.
II. Misjoined Claim
The complaint in this action violates the joinder of claims limitation of the Federal Rules
of Civil Procedure. That is, “unrelated claims against different defendants belong in different suits.
. . .” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The Court finds that the Justise’s First Amendment claim that defendant Michelle Metcalf
interfered with his mail is improperly joined. Accordingly, this claim is dismissed from this action.
This claim must be brought in a separate lawsuit. Justise shall have through January 8, 2016, in
which to notify the Court of the following: whether he wishes the claim identified in Part II of this

Entry to be severed into separate lawsuit. He is reminded that if he wishes for this claim to be
severed into a new lawsuit, that lawsuit will be subject to a separate filing fee and the screening
requirement of 28 U.S.C. § 1915A(b). If he does not so notify the Court, this claim will be
dismissed.
III. Insufficient Claims
Plaintiff advances numerous claims which are insufficient. The Court will address each
claim in turn.
A. The claims against Defendants Karen Richards, Ron Neal, and William Wilson
The claims against Richards, Neal and Wilson are iusufficient. Justise identifies Richards,
Neal, and Wilson in their roles as supervisors. Richards is also a law librarian and she is Jerry
Huston’s supervisor. Neal and Wilson were both Superintendents at the Indiana State Prison.
Justise made a request that Superintendents Wilson and Neal provide him with an Xbox
video game console, access to weight machines, treadmills, more frequent visitation, large fans
outside their cells, and access to a microwave oven that fewer inmates have access to, but such
requests were denied. He makes no other factual allegations against Wilson and Neal and he does
not allege any wrongdoing whatsoever, against Richards. These defendants presumably have been
added to this complaint merely based on their supervisory roles.
“‘[T]o recover damages under § 1983, a plaintiff must establish that a defendant was
personally responsible for the deprivation of a constitutional right.’” Johnson v. Snyder, 444 F.3d
579, 583 (7th Cir. 2006) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). “Section
1983 creates a cause of action based upon personal liability and predicated upon fault; thus,
liability does not attach unless the individual defendant caused or participated in a constitutio na l
deprivation.” Sheif-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994), cert. denied, 513 U.S.

1128 (1995). See West v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997) (“the doctrine of respondeat
superior is not available to a plaintiff in a section 1983 suit”). Burks v. Raemisch, 555 F.3d 592,
593-94 (7th Cir. 2009) (“Section 1983 does not establish a system of vicarious responsibility.
Liability depends on each defendant's knowledge and actions, not on the knowledge or actions of
persons they supervise. . . . Monell's rule [is that] that public employees are responsible for their
own misdeeds but not for anyone else’s.”)(citing Monell v. New York City Dep't of Social Services,
436 U.S. 658 (1978)). “Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
A plaintiff must allege facts showing the defendant’s participation or direct responsibility
for the conditions of which he complains, Starenske v. City of Elkhart, 87 F.3d 872, 879 (7th Cir.
1996), by demonstrating a causal link between the defendant's conduct and the plaintiff's injury.
Benson

v.

Cady,

761

F.2d

335,

339

(7th

Cir.

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co_pp_sp_350_339. Justise does not allege any facts that Superintendents Neal and Wilson or

Richardson were personally involved in any of the alleged constitutional deprivations. As such,
all claims against these defendants are dismissed.
B. John Doe, Marion County Jail and. Jail Commander.
Claims against John Doe, the Marion County Jail and Jail Commander are dismissed,
because “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). Additionally, the Marion County Jail is a building and is not a suable entity. Smith v.
Knox County Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).
C. Jerry Huston-Appeal of 2007 Criminal Conviction
Next, Justise alleges that he was prevented from filing a direct appeal to his state court
conviction in Justise v. State, 49A05-0608-CR-433. Specifically, he alleges that he was denied all
requested legal materials and unable to file an appellate brief which resulted in his direct appeal
being dismissed. The Indiana Court of Appeals dismissed Justise’s appeal on December 26, 2007.
See Justise v. State, Ind. Ct. App. Case No. 49A05-0608-CR-433. On December 13, 2008, Justise
filed a motion for reinstatement of appeal that was denied on January 2, 2009. On April 16, 2009,
the Indiana Court of Appeal denied his motion for reconsideration. Id. Huston was the staff
member in charge of the law library at the Wabash Valley Correctional Facility while Justise was
appealing his conviction.
Justise’s direct appeal of his criminal conviction was dismissed in 2007 and the Indiana
Court of Appeals denied his motion for reinstatement in 2009. The denial of the motion for
reinstatement was mailed to Justise on January 5, 2009. See Ind. Ct. App. Online docket, Justise
v. State, Ind. Ct. App. Case No. 49A05-0608-CR-433.
Justise alleges that Huston violated his constitutional rights to access the Indiana Court of
Appeals which resulted in the dismissal of his direct appeal. However, this claim is barred by the
statute of limitations. The Supreme Court of the United States has held that the statute of
limitations that governs § 1983 claims is “the period of limitations adopted by the states for
personal injury suits.” Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009) (quoting
Wilson v. Garcia, 471 U.S. 261 (1985)). Under Indiana law, claims concerning personal injur ies
“must be commenced within two (2) years after the cause of action accrues.” Ind. Code § 34-11-

2-4. A § 1983 claim accrues when a plaintiff knows or has reason to know of the injury that is the
basis of his action. Sellars v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). Here, Justise’s cause of
action arose in January of 2009 when the Indiana Court of Appeals denied his motion to reinstate
his direct appeal. The statute of limitation on this claim ran in January of 2011, approximately 4
½ years before he filed this action. 1 The claim for denial of access to the courts against Huston as
it relates to his 2007 direct appeal is barred by the statute of limitations. “[A] plaintiff can plead
himself out of court by alleging facts that show there is no viable claim.” Pugh v. Tribune Co., 521
F.3d 686, 699 (7th. Cir. 2008).
D. Jerry Huston-various civil appeals
Justise alleges that defendant Huston made his appellate pleadings in several appeals so
late, resulting in the appeals being waived. “[W]hen a plaintiff alleges a denial of the right to
access-to-courts, he must usually plead specific prejudice to state a claim, such as by alleging that
he missed court deadlines, failed to make timely filing, or that legitimate claims were dismissed
because of the denial of reasonable access to legal resources.” Ortloff v. United States, 335 F.3d
652, 656 (7th Cir. 2003)(general allegations that destruction of legal papers prejudiced pending
lawsuits did not state a claim).
Justise does not describe or allege any prejudice based on his alleged denial of access to
the courts. The complaint must be dismissed because it does not “‘contain either direct or
inferential allegations respecting all the material elements necessary to sustain recovery under
some viable legal theory.’” Twombly, 127 S. Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor

1

Justise alleges that the dismissal of the direct appeal became final in 2011 when the Indiana Court of
Appeals denied his motion to file a belated appeal. The Indiana Court of Appeals received a motion titled
“Appellant’s Petition to File Belated Appeal” on November 8, 2010. The court did not file this motion and
did not rule on it. In 2012, the Indiana Court of Appeals allowed the trial court to remove the record on
appeal for Justise’s post-conviction proceedings. See Ind. Ct. App. Online docket, Justise v. State, Ind. Ct.
App. Case No. 49A05-0608-CR-433.

Co., 745 F .2d 1101, 1106 (7th Cir. 1984)). The claim for denial of access to the court against
defendant Huston as it relates to various civil appeals is dismissed.
E. Jerry Huston-Putnam Circuit Court lawsuit
Justise alleges the civil action he filed in 2009 in the Putnam Circuit Court was dismissed
because he was denied access to the court and was not able to properly litigate it. According to the
complaint, the civil action was filed in 2009 and dismissed in June of 2011 pursuant to motions to
dismiss filed by the defendants in that case. Similar to Justise’s direct appeal of his state court
criminal conviction discussed above, this claim is barred by the applicable statute of limitatio ns.
Based on the facts set forth in the complaint, this cause of action accrued in June of 2011. The
statute of limitations on this claim ran in June of 2013, approximately 2 ½ years before he filed
this cause of action. The claim for denial of access to the court against Huston as it relates to the
Putnam Circuit Court civil action is barred by the statute of limitations. “[A] plaintiff can plead
himself out of court by alleging facts that show there is no viable claim.” Pugh 521 F.3d at 699.
F. Equal Protection
Justise alleges that his rights under the Fourteenth Amendment Equal Protection Clause
were violated because he was not given the same benefits that other inmates received, such as the
ability to purchase an Xbox 360 video game console, access to weight machines, treadmills, more
frequent visitation, large fans outside their cells, and access to a microwave oven that fewer
inmates have access to. “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). Simply receiving different or unfair treatment is not
enough to raise an equal protection violation. Huebschen v. Department of Health & Soc. Servs.,

716 F.2d 1167, 1171 (7th Cir. 1983). Justise has failed to allege that he was treated unfairly because
of his membership in a particular class and therefore does not allege a viable Equal Protection
claim. His claim for a violation of his rights under the Fourteenth Amendment Equal Protection
Clause is dismissed.
G. Destruction of Property-Michelle Metcalf
In his amended complaint, Justise alleges that Metcalf admits to destroying photographs
that his mother sent him in the mail. Any claim for the recovery of lost or stolen property is
dismissed for failure to state a claim upon which relief can be granted because as long as Justise
has an adequate post-deprivation remedy, which he has in the form of a state law claim, he is not
entitled to any additional constitutional protection. See Gates v. City of Chicago, 623 F.3d 389,
410 (7th Cir. 2010); Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (Wynn has an adequate
post-deprivation remedy in the Indiana Tort Claims Act, and no more process was due.).
H. Nude Photos-Michelle Metcalf
Finally, Justise alleges Metcalf confiscated nude photographs that he received in the mail
simply because they were nude photos. He argues he is “entitled to possess nude photos.” Justise
is incorrect. There is no First Amendment right to possess nude photos. Payton v. Cannon, et al.,
2015 WL 7729382 (7th Cir., December 1, 2015). This claim is dismissed and defendant Metcalf
is dismissed as a defendant in this action.
IV. Claim that May Proceed
Justise alleges in this complaint that he is an atheist and Liebel is denying him a meeting
place to discuss issues with other atheist prisoners. He also alleges he is denied a kosher diet based
on his religious choice and that the Indiana Department of Correction (IDOC) does not recognize
atheism as a religion which violates his religious freedom under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. The claim for injunc tive
relief pursuant to RLUIPA shall proceed against defendant Liebel, a representative of the IDOC
in his official capacity. See Sossamon v. Texas, 131 S.Ct. 1651 (2011) (money damages are not
available in suits against states under the RLUIPA). The only relief available to Justise if he
prevails on his RLUIPA claim is for injunctive relief. 2
V. Summary
The RUILPA claim against defendant Liebel may proceed in this action.
All other claims and defendants are dismissed pursuant to 28 U.S.C. § 1915A. Justise shall
have through January 8, 2016, to show cause why the claims in Section III (C) and (E) should
not be dismissed from this action.
Justise shall have through January 8, 2016, to notify the Court whether he believes he
has asserted any claim in his complaint which has not been discussed in this Entry.
Defendant Liebel has already appeared in this action. He shall have thirty days from the
date of this Entry to file an answer.
No partial judgment shall enter at this time as to the claims resolved in this Entry.
IT IS SO ORDERED.

Date: 12/9/2015

2

In its motion for screening, defendants John Doe, Marion County Jail and Jail Commander, Marion County
Jail, argue this Court should dismiss this complaint pursuant to Indiana Code § 34-58-1-2 and the Prison
Litigation Reform Act (“PLRA”). This argument fails for two reasons. First, Indiana Code § 34-58-1-2 is
a mechanism for Indiana state courts to dismiss frivolous litigation after an individual has struck out in state
court. A federal district court, such as this Court, is not able to dismiss an action pursuant to this state
statute. To the extent this option was available to the defendants, it should have been exercised prior to
removal to this Court. Secondly, the PLRA prohibits a prisoner from filing a civil action in forma pauperis
if he has three or more strikes. 28 U.S.C. § 1915(g). When the defendants removed this action to this Court,
they paid the filing fee. As such, Justise is not proceeding in forma pauperis. It does not appear from the
record that the State defendants objected or consented to the removal of this action. 28 U.S.C. § 1446(b).

Distribution:
Electronically registered counsel
Charles E. Justise, Sr., #921730
Indiana State Prison
Inmate Mail/Parcels
One Park Row
Michigan City, IN 46360