PURVIS v. INDIANA DEPARTMENT OF CORRECTION et al

Filing 41

ENTRY Directing Further Proceedings - The plaintiff shall have through June 11, 2015, in which to notify the Court of the following: (1) whether he believes he has asserted any claim in his Amended Complaint which has not been discussed in this Ent ry; (2) which of the claims identified in Part II of this Entry he wishes to proceed in this action; and (3) whether he wishes the remaining claims to be severed into separate lawsuits. **SEE ENTRY** Signed by Judge William T. Lawrence on 5/7/2015.(AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
WILLARD PURVIS,
Plaintiff,
vs.
INDIANA DEPARTMENT OF
CORRECTION, et al.,
Defendants.

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Case No. 2:14-cv-41-WTL-WGH

Entry Discussing Amended Complaint and Directing Further Proceedings
Plaintiff Willard Purvis, an inmate at the Wabash Valley Correctional Facility, brings this
action pursuant to 42 U.S.C. § 1983 raising a multitude of allegations that his civil rights have
been violated during his incarceration at the Wabash Valley Correctional Facility and the New
Castle Correctional Faculty. The Amended Complaint is subject to the screening requirement of
28 U.S.C. § 1915A. Based on this screening, certain claims must be dismissed. The remaining
claims have been improperly joined in this action and the plaintiff will be directed to notify the
Court which of those improperly joined claims he wishes to pursue.
I. Screening of the Amended Complaint
First, the plaintiff’s claims against Bruce Lemmon, the Commissioner of the Indiana
Department of Correction, must be dismissed because his supervisory position is not adequate to
support the imposition of liability. 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"). Even if the
plaintiff wrote letters to this defendant, this fact alone is insufficient to support recovery. Johnson
v. Snyder, 444 F.3d 579, 583-84 (7th Cir. 2006)(letters to Director insufficient to create a genuine

issue of material fact regarding personal responsibility of Director, where Director had delegated
responsibility for reviewing grievances, and there was no evidence that Director had read letters).
Next, any claim based on an alleged denial of grievance procedures or forms is dismissed
because Aany right to a grievance procedure is a procedural right, not a substantive one.
Accordingly, a state’s inmate grievance procedures do not give rise to a liberty interest protected
by the Due Process Clause.@ Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996), Because
the plaintiff had no expectation of a particular outcome of his grievances, there is no viable claim
which can be vindicated through 42 U.S.C. ' 1983. 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).
In addition, many of the plaintiff’s claims are based on alleged actions that took place more
than two years before this case was initially filed on February 14, 2014. This includes, but is not
limited to, the plaintiff’s claim that the defendants failed to protect him from harm when they
allowed him to be double celled with an inmate who was a threat to his safety in 2011, his claim
that on May 2, 2011, he was placed on Administrative Segregation in retaliation for complaining
about his conditions to the Indiana Ombudsman Bureau, and his claim that he was subjected to an
unreasonable number of cell searches. Claims brought pursuant to § 1983 are subject to a two-year
statute of limitations and claims regarding acts that took place before February 14, 2012 are
properly dismissed. See Miles v. Vanderburgh Cnty. Jail, 335 F. App'x 633, 635 (7th Cir. 2009).
“It is, of course, ‘irregular’ to dismiss a claim as untimely under Rule 12(b)(6). . . .However, . . .
dismissal under Rule 12(b)(6) on the basis of a limitations defense may be appropriate when the
plaintiff effectively pleads [him]self out of court by alleging facts that are sufficient to establish
the defense.” Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006) (internal citations

omitted). Although the requirements of notice pleading are minimal, when a plaintiff “pleads facts
that show his suit is time barred or otherwise without merit, he has pleaded himself out of court.”
Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993). That is
exactly what the plaintiff has done here.
The claim that he was forced to sleep in a chair from February 11 to April 15, 2014 is
dismissed because the plaintiff does not identify any defendant who caused this alleged
deprivation.
The plaintiff’s claim that he received a “contrary and vindictive” classification designation
on April 12, 2012, is dismissed. A prisoner has no due process or other right to be housed in or
returned to a prison’s general population from a segregation unit under the circumstances alleged
by the plaintiff. Townsend v. Fuchs, 552 F.3d 765, 772 (7th Cir. 2008) (quoting Wilkinson v.
Austin, 545 U.S. 209, 222-24 (2005)); Lucien v. DeTella, 141 F.3d 773, 774 (7th Cir. 1998)
(AClassifications of inmates implicate neither liberty nor property interests . . . .@) (citing Sandin
v. Conner, 515 U.S. 472, 484 (1995)).
Finally, any claim based on a Report of Conduct which resulted in the deprivation of credit
time is dismissed. The settled law in these circumstances is that when a prisoner makes a claim
that, if successful, could shorten his term of imprisonment, the claim must be brought as a habeas
petition, not as a ' 1983 claim. Heck v. Humphrey, 512 U.S. 477 (1994). In Edwards v. Balisok,
520 U.S. 641 (1997), the foregoing rule was Aextend[ed] . . . to the decisions of prison disciplinary
tribunals.@ Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2007).
II. Claims that are Improperly Joined
With respect to the remaining claims, the Amended Complaint 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). Joinder of the defendants into one action is proper only “if there is asserted against them
jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of law or fact
common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a).
After dismissing non-viable claims, the Court discerns the following claims. The claims
are described under the most applicable constitutional provision. See Conyers v. Abitz, 416 F.3d
580, 586 (7th Cir. 2005). Further, claims that would be properly joined with each other are so
identified.


The First Amendment claim that on August 2, 2012, Lt. Nicholson issued a Report of
Conduct against the plaintiff in retaliation for his filing of grievances and that the Report
of Conduct was later dismissed; The First Amendment claim that in August 2012 the
plaintiff’s work status was changed in retaliation for attempting to file grievances against
defendants Mr. Brown, Mr. Gilmore, Mrs. Gilmore, Lt. Nicholson, Mr. Marshall, Mr.
Snyder, and Mr. Leohr; The Eighth Amendment deliberate indifference claim that in
September of 2012, the plaintiff was improperly assigned to an upper floor against
defendants Mr. Gilmore, Mrs. Gilmore, and Mr. Donaldson; The Eighth Amendment
deliberate indifference claim that in May 2013 and June 2013, the plaintiff was transferred
to the Transition Unit at New Castle Correctional Facility despite the fact that the plaintiff’s
status as a sex offender would subject him to risk of assault against defendants Mr. Collins,
Mrs. Gilmore, Mr. Snyder, Mr. Marshall, Mr. Gilmore, Mr. Littlejohn, Mr. Brown,
and Mr. Leohr.



The claim that defendant Arnold improperly confiscated the plaintiff’s television.



The First Amendment claim that defendant Hinton denied the plaintiff information related
to attorney contact information in retaliation for attempting to file a grievance; The
deliberate indifference claim against defendant Hinton for putting the plaintiff at risk of
harm by informing other prisoners that the plaintiff had been convicted of child
molestation.



The Eighth Amendment claim that defendants Maddox, Willis, and Hendershot put the
plaintiff at risk of harm when they called him names such as “snitch” and” child molester”
in hopes that other offenders would hear and cause harm to the plaintiff; the claim that
defendant Willis served the plaintiff a tray of food with excrement in it; the First
Amendment claim that defendant Willis discarded the plaintiff’s mail.
III. Further Proceedings
As stated above, the plaintiff has failed to state a claim for relief with respect to several of

the claims in his complaint. As for the remaining claims, those claims must be brought in separate
lawsuits. To facilitate the severance of the remaining claims. The plaintiff shall have through
June 11, 2015, in which to notify the Court of the following: (1) whether he believes he has
asserted any claim in his Amended Complaint which has not been discussed in this Entry; (2)
which of the claims identified in Part II of this Entry he wishes to proceed in this action; and (3)
whether he wishes the remaining claims to be severed into separate lawsuits. He is reminded that
if he wishes for the remaining claims to be severed into new lawsuits, each lawsuit will be subject
to a separate filing fee and the screening requirement of 28 U.S.C. § 1915A(b).

If the plaintiff

fails to properly respond to this Entry, the following claims will proceed:
The First Amendment claim that on August 2, 2012, Lt. Nicholson issued a Report
of Conduct against the plaintiff in retaliation for his filing of grievances and that
the Report of Conduct was later dismissed; The First Amendment claim that in
August 2012 the plaintiff’s work status was changed in retaliation for attempting to

file grievances against defendants Mr. Brown, Mr. Gilmore, Mrs. Gilmore, Lt.
Nicholson, Mr. Marshall, Mr. Snyder, and Mr. Leohr; The Eighth Amendment
deliberate indifference claim that in September of 2012, the plaintiff was
improperly assigned to an upper floor against defendants Mr. Gilmore, Mrs.
Gilmore, and Mr. Donaldson; The Eighth Amendment deliberate indifference
claim that in May 2013 and June 2013, the plaintiff was transferred to the Transition
Unit at New Castle Correctional Facility despite the fact that the plaintiff’s status
as a sex offender would subject him to risk of assault against defendants Mr.
Collins, Mrs. Gilmore, Mr. Snyder, Mr. Marshall, Mr. Gilmore, Mr.
Littlejohn, Mr. Brown, and Mr. Leohr.
The remaining claims will be dismissed without prejudice.
IT IS SO ORDERED.

Date: 5/7/15

_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

WILLARD PURVIS
985367
Wabash Valley Correctional Facility
Electronic Filing Participant – Court Only