FRY v. INDIANA DEPT. OF CORRECTION

Filing 5

ENTRY - 3 Motion for Leave to Proceed in forma pauperis is granted. The claim against the Indiana Department of Correction is dismissed because such claims are barred by the Eleventh Amendment to the United States Constitution, and the doctrin e of sovereign immunity. Frye's complaint must be dismissed for the reasons set forth above. Frye shall have through March 26, 2018, in which to show cause why Judgment consistent with this Entry should not issue. Signed by Judge Tanya Walton Pratt on 2/21/2018. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DUANE FRY,
Plaintiff,
v.
INDIANA DEPT. OF CORRECTION,
Defendant.

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No. 1:18-cv-00423-TWP-DML

Entry Granting In Forma Pauperis Status,
Dismissing Complaint, and Directing Further Proceedings
I.

In Forma Pauperis

Plaintiff Duane Fry’s (“Fry”) motion for leave to proceed in forma pauperis, dkt. [3], is
granted. The assessment of an initial partial filing fee is waived at this time because the plaintiff
does not have the assets or the means to pay it. 28 U.S.C. § 1915(a)(4).
II.

Screening Standard

Frye is a prisoner currently incarcerated at Pendleton Correctional Facility (“Pendleton”).
Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation
under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants. Pursuant to
28 U.S.C. § 1915A(b), the Court 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,
[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 Frye 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).
III.

The Complaint

Frye alleges that he was deprived of his personal property, located in a padlocked property
box, when he was moved to segregated housing. When he attempted to regain possession of his
property, he was told that another inmate had moved into the cell and removed the property before
prison officials could engage a locksmith to remove the padlock. Frye seeks as relief monetary
damages to replace his lost personal property and an injunction to change Indiana Department of
Correction policy regarding the removal of inmates’ personal property.
The complaint has not named any “person” who is allegedly responsible for violating Mr.
Fry’s constitutional rights. The Indiana Department of Correction is not a person. The claim
against the Indiana Department of Correction is dismissed because such claims are barred by the
Eleventh Amendment to the United States Constitution, and the doctrine of sovereign immunity.
See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Omosegbon v. Wells, 335 F.3d 668, 673 (7th
Cir. 2003); Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995).
Frye’s claim would fail even if he had named an individual responsible for his alleged loss.
His claim is brought pursuant to 42 U.S.C. § 1983. This statute creates a federal cause of action
for “the deprivation, under color of [state] law, of a citizen’s rights, privileges, or immunities
secured by the Constitution and laws of the United States.” Livadas v. Bradshaw, 512 U.S. 107,
132 (1994). Thus, no action lies under § 1983 unless a plaintiff has asserted the violation of a
federal right. See Middlesex County Sewage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19

(1981); Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992) (without a predicate
constitutional violation one cannot make out a prima facie case under § 1983).
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
due process.”). Because Frye 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). The complaint fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A.

IV.

Dismissal of the Complaint

Frye’s complaint must be dismissed for the reasons set forth above. Frye shall have
through March 26, 2018, in which to show cause why Judgment consistent with this Entry should
not issue. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013) (“Without
at least an opportunity to amend or to respond to an order to show cause, an IFP applicant’s case
could be tossed out of court without giving the applicant any timely notice or opportunity to be
heard to clarify, contest, or simply request leave to amend.”).
IT IS SO ORDERED.

Date: 2/21/2018

Distribution:
DUANE FRY
873242
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only