ANDERSON v. SHAVER et al

Filing 10

ENTRY Discussing Complaint and Directing Further Proceedings-For the reasons discussed above, the plaintiff's claim for excessive force against defendant Joshua Shaver shall proceed. All other claims are dismissed. Signed by Judge Tanya Walton Pratt on 6/14/2016 (dist made)(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTAEUS ANDERSON,
Plaintiff,
vs.
JOSHUA SHAVER,
BRUCE LEMMON,
D. ZATECKY,
UNKNOWN DEFENDANTS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 1:16-cv-00794-TWP-DML

Entry Discussing Complaint and Directing Further Proceedings
Plaintiff Antaeus Anderson, an inmate of the Indiana Department of Correction, alleges
that he was subjected to excessive force and his property was taken by prison officials at the
Pendleton Correctional Facility. He alleges that his constitutional rights were violated and brings
this complaint pursuant to 42 U.S.C. § 1983.
I. Screening of the Complaint
Because the plaintiff is a “prisoner” as defined by 28 U.S.C. ' 1915(h), the complaint is
subject to the screening requirement of 28 U.S.C. § 1915A(b). Pursuant to this statute, “[a]
complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show
that plaintiff is not entitled to relief.” Jones v. Bock, 127 S. Ct. 910, 921 (2007). To survive a
motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state
a claim to 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, 129 S.Ct. 1937, 1949 (2009) (quotations

omitted). Pro se complaints such as that filed by the plaintiff, are construed liberally and held to a
less stringent standard than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94;
Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
Based on this screening, the plaintiff’s claim that he was subjected to excessive force shall
proceed against defendant Joshua Shaver.
Any claim pursuant to the due process clause of the Fourteenth Amendment based on the
seizure of the plaintiff’s property must be dismissed. 1 The Fourteenth Amendment provides that
state officials shall not “deprive any person of life, liberty, or property, without due process of
law,” but a state tort claims act that provides a method by which a person can seek reimbursement
for the negligent loss or intentional deprivation of property meets the requirements of the due
process clause by providing due process of law. Hudson v. Palmer, 468 U.S. 517, 533 (1984)(“For
intentional, as for negligent deprivations of property by state employees, the state’s action is not
complete until and unless it provides or refuses to provide a suitable post deprivation remedy.”).
Indiana’s Tort Claims Act (IND. CODE ' 34-13-3-1 et seq.) provides for state judicial review
of property losses caused by government employees, and provides an adequate post-deprivation
remedy to redress state officials’ accidental or intentional deprivation of a person’s property. 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.”); Zinerman v. Burch, 110 S. Ct.
975, 983 (1990) (“Deprivation of a constitutionally protected interest in ‘life, liberty, or property’
is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest
without due process of law . . . . The constitutional violation actionable under § 1983 is not
complete when the deprivation occurs; it is not complete unless and until the State fails to provide
Any Fourth amendment claim must also be dismissed because prisoners have no reasonable expectation of privacy
in their property. See Hudson v. Palmer, 468 U.S. 517 (1984).
1

due process.”). Because the plaintiff has an adequate state law remedy, the alleged deprivation of
his property was not a constitutional violation. Weaver v. Combs, 2008 WL 4371342, *3 (S.D. Ind.
2008).
Any claim based on an allegation that acts on the part of the defendants violated the
plaintiff’s right of access to the courts must be dismissed. “[T]o state a right to access-to-courts
claim and avoid dismissal under Rule 12(b)(6), a prisoner must make specific allegations as to the
prejudice suffered because of the defendant’s alleged conduct. This is because a right to accessto-courts claim exists only if a prisoner is unreasonable prevented from presenting legitimate
grievances to a court; various resources, documents, and supplies merely provide the instruments
for reasonable access, and are not protected in and of themselves. Thus, when 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). The plaintiff’s broad allegations that the
prosecution of his lawsuits was hindered is insufficient to raise his right to relief on this claim
above a speculative level. See Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084
(7th Cir. 2008)). (The complaint “must actually suggest that the plaintiff has a right to relief, by
providing allegations that raise a right to relief above the speculative level.”).
Claims against all unknown John Doe defendants are dismissed for failure to state a claim
upon which relief can be granted 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). Bringing suit against unnamed, or “John Doe,” defendants in federal
court is generally disfavored by the Seventh Circuit. If through discovery, the plaintiff is able to
learn the name of the unknown defendants, he may seek leave to add a claim against them.
Any claim against Dushan Zatecky or Bruce Lemmon must be dismissed because the
plaintiff has not alleged that these defendants personally participated in the acts at issue. If an
official, who is not otherwise responsible for allegedly unconstitutional conditions or actions,
could be held liable upon being notified by the plaintiff, then a plaintiff could choose to bring any
and all officials within the scope of liability simply by writing a series of letters. To allow liability
to be based upon “such a broad theory. . . [would be] inconsistent with the personal responsibility
requirement for assessing damages against public officials in a § 1983 action.” Crowder v. Lash,
687 F.2d 996, 1006 (7th Cir. 1982); Vance v. Rumsfeld, 701 F.3d 193, 204, 2012 WL 5416500, 10
(7th Cir. 2012) (knowledge of subordinates’ misconduct is not enough for liability).
Finally, the claim that his freedom of religion rights were violated through the confiscation
of his religious materials must be dismissed because the plaintiff does not identify what defendant
is personally responsible for the alleged deprivation. See George v. Smith, 507 F.3d 605, 609 ((7th
Cir. Cir. 2007)(“Only persons who cause or participate in the violations are responsible”).
II. Conclusion
For the reasons discussed above, the plaintiff’s claim for excessive force against defendant
Joshua Shaver shall proceed. All other claims are dismissed.
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendant
Shaver in the manner specified by Rule 4(d). Process shall consist of the complaint, applicable

forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service
of Summons), and this Entry.
IT IS SO ORDERED.

06/14/2016
Date: _________________

Distribution:
ANTAEUS ANDERSON
166285
MIAMI CORRECTIONAL FACILITY
Inmate Mail/Parcels
3038 West 850 South
BUNKER HILL, IN 46914
Joshua Shaver
Pendleton Correctional Facility
4490 W. Reformatory Rd.
Pendleton, IN 46064