KENT v. INDIANA DEPT OF CORRECTIONS et al

Filing 10

Entry Dismissing Complaint and Directing Plaintiff to Show Cause - The plaintiff's complaint must be dismissed for each of the reasons set forth above. The plaintiff shall have through October 6, 2020, in which to show cause why Judgment consistent with this Entry should not issue. (See Order.) Copy to Plaintiff via US Mail. Signed by Judge Tanya Walton Pratt on 9/14/2020.(NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DELMAR J. KENT,

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Plaintiff,
v.
INDIANA DEPT OF CORRECTIONS,
THE GEO GROUP INC.,
Defendants.

No. 1:20-cv-01928-TWP-TAB

Entry Dismissing Complaint and Directing Plaintiff to Show Cause
Plaintiff Delmar J. Kent, is an inmate at New Castle Correctional Facility. He sued the
Indiana Department of Correction (IDOC) and GEO Group, Inc., pursuant to 42 U.S.C. § 1983.
For the reasons explained below, the complaint must be dismissed.
I. Screening Standard
Because the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915A(c), this Court has an
obligation under § 1915A(b) to screen his complaint before service on the defendants. Pursuant
to § 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 Cesal v. Moats,
851 F.3d 714, 720 (7th Cir. 2017). 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.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal quotation omitted).
II. The Complaint
The complaint alleges that between July 1 and 8, 2020, legal mail addressed to the U.S.
District Court was opened outside of the plaintiff's presence and placed in another envelope and
sent to the Marion County Court Clerk. The plaintiff states that these actions violate his First,
Eighth, and Fourteenth Amendment rights, as well as Executive Directives 17-13 and 18-54
(effective November 1, 2018). In terms of relief, the plaintiff seeks "just relief in accordance with
the law to correct and remedy this blatant violation of my rights."
III. Dismissal of Action
The complaint is dismissed for failure to state a claim upon which relief may be granted.
First, the defendants cannot be liable under § 1983 given the circumstances alleged. Any
claim against the IDOC is barred by the Eleventh Amendment. de Lima Silva v. Dep't of
Corrections, 917 F.3d 546, 565 (7th Cir. 2019). The Eleventh Amendment immunity bars suits
against states and their agencies regardless of the relief sought, whether damages or injunctive
relief. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89, 102 (1984); Mutter v. Rodriguez, 700 F. App'x 528, 530 (7th
Cir. 2017). In addition, states and their agencies are not "persons" subject to suit pursuant to 42
U.S.C. § 1983 under the circumstances alleged in the plaintiff's complaint. Thomas v. Illinois, 697
F.3d 612, 613 (7th Cir. 2012) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 66–70
(1989).

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GEO Group is also not liable under the circumstances alleged. Because GEO Group acts
under color of state law by contracting to perform a government function, i.e., running a
correctional institution, it is treated as a government entity for purposes of Section 1983 claims.
See Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002). Therefore, to state a
cognizable claim GEO Group, the plaintiff must allege that he suffered a constitutional deprivation
as the result of an express policy or custom of GEO Group. No such policy or custom has been
alleged.
The second basis for dismissal is that the Court's records reflect that the plaintiff did not
suffer an injury as a result of the misdirected mail and there is no allegation that the problem has
persisted. Kent v. Mote, 1:20-cv-1495-JRS-TAB, includes the filing that was initially misdirected
to the Marion County Clerk's Office. The record reflects that the Marion County Clerk's Office
returned the document to the plaintiff and that he then sent it to this Court's clerk for review. See
1:20-cv-1495-JRS-TAB, docket number 11-1. That filing was accepted by the clerk and
considered by the Court prior to the dismissal of his claim. Id. at dkt 12. In addition, there are no
allegations that any other filings have been misdirected.
The plaintiff's complaint must be dismissed for each of the reasons set forth above. The
plaintiff shall have through October 6, 2020, 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."); Jennings v. City of
Indianapolis, 637 F. App'x 954, 954–955 (7th Cir. 2016) ("In keeping with this court's advice in

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cases such as Luevano . . . , the court gave Jennings 14 days in which to show cause why the case
should not be dismissed on that basis.").
IT IS SO ORDERED.

Date:

9/14/2020

Distribution:
DELMAR J. KENT
219589
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362

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