PETERSON v. BUTTS et al

Filing 11

Entry Discussing Complaint and Directing Further Proceedings - The claim that defendants Thombleson and French have retaliated against Peterson for Peterson's filing of lawsuits shall proceed. Any claim against defendant Upchurch for retaliat ion is dismissed because Peterson does not adequately allege a chronology of events from which retaliation may plausibly be inferred.The clerk shall terminate all defendants except Thombleson and French from the docket. The clerk is designated pur suant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants Thombleson and French 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. **SEE ORDER** Copy sent to Plaintiff and Defendants via U.S. Mail (per distribution list). Signed by Judge Tanya Walton Pratt on 8/11/2016.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALLENN PETERSON,
Plaintiff,
vs.
KEITH BUTTS,
JENNIFER FRENCH,
MICHAEL THOMBLESON,
MISTY CECIL,
FARRAH OWENS,
A PETTY,
JUSTIN UPCHURCH,
Defendants.

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No. 1:16-cv-01280-TWP-MJD

Entry Discussing Complaint and Directing Further Proceedings
Plaintiff Allenn Peterson, an inmate at the New Castle Correctional Facility, brings this
action pursuant to 42 U.S.C. § 1983 alleging that the defendants violated his civil rights when he
was terminated from his prison job. He alleges that he was terminated from his job as a library
clerk because the computer server had been tampered with even though the defendants knew that
Peterson was not the culprit.
Because Peterson 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). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting
Twombly, 550 U.S. at 555 & 557). 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, certain claims will be dismissed while others will proceed.
Any claim that the defendants’ actions violated Peterson’s equal protection or due process
rights under the Fourteenth Amendment or amounted to employment discrimination in violation
of Title VII of the of the Civil Rights Act of 1964 must be dismissed. First, an inmate has no due
process interest in a prison job. See Lucien v. DeTella, 141 F.3d 773, 774 (7th Cir. 1998)
(“Classifications of inmates implicate neither liberty nor property interests. . . .”) (citing Sandin v.
Conner, 515 U.S. 472, 484 (1995)); Wallace v. Robinson, 940 F.2d 243, 247 (7th Cir. 1991). With
respect to his Equal Protection and employment discrimination claims, Peterson has not alleged
any facts that would raise the inference that the termination from his job was based on his
membership in a protected class. See Herro v. City of Milwaukee, 44 F.3d 550, 552 (7th Cir. 1995)
(“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.”); McGee v. Mayo, 211 F. App’x 492, 494 (7th Cir. 2006) (“He
does not suggest that the defendants confined him to his cell and kept him from working because
of his membership in a protected group, and so his claims of equal protection and employment
discrimination fail.”) (citing Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)). The bare

allegation that he “was treated less favorably than similarly situated workers outside his class” is
in sufficient to raise his right to relief beyond a speculative level.
Next, any claim based on the assertion that the classification action violated Indiana
Department of Correction policy must be dismissed because Peterson has identified no violation
of his rights based on any alleged policy violation and the Court can ascertain none. See Thompson
v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (the violation of police regulations or even
a state law is completely immaterial as to the question of whether a violation of the federal
constitution has been established).
In addition, any state law claim for intentional infliction of emotional distress must be
dismissed. To establish a claim for intentional infliction of emotional distress, a plaintiff must
prove that the defendant: (1) intentionally or recklessly (2) engaged in ‘extreme and outrageous’
conduct that (3) caused (4) severe emotional distress. Doe v. Methodist Hospital, 690 N.E.2d 681,
691 (Ind. 1997)). Indiana requires conduct that is so extreme that it “go[es] beyond all possible
bounds of decency.” Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999). “Generally,
the case is one in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. Here, Mr.
Peterson has not alleged conduct that “goes beyond all possible bounds of decency.” His
allegations are based on the alleged termination of his prison job. These are not circumstances
under which a reasonable fact finder would conclude that the defendants engaged in “extreme and
outrageous” conduct.
Any claim against defendant Keith Butts must also be dismissed because those claims are
based on defendant Butts’ supervisory role as the Superintendent of the New Castle Correctional
Facility, which is not enough to state a § 1983 violation. 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).
The claim that defendants Thombleson and French have retaliated against Peterson for
Peterson’s filing of lawsuits shall proceed. Any claim against defendant Upchurch for retaliation
is dismissed because Peterson does not adequately allege a chronology of events from which
retaliation may plausibly be inferred.” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000)
(quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)). “[A]lleging merely the ultimate
fact of retaliation is insufficient.” Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). The clerk
shall terminate all defendants except Thombleson and French from the docket.
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants
Thombleson and French 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.

Date: 8/11/2016
Distribution:
ALLENN PETERSON
22855
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Michael Thombleson
Jennifer French
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362