MOON v. LOCKETT, et al.

Filing 28

Screening ENTRY. MILLER (Officer), PETERS (Lieutenant), T. PULLEN, D. PUTHOFF, BOOKER (Officer) and HEISER (Nurse) terminated. **SEE ENTRY** Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 5/11/2015.(AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

DARNELL WESLEY MOON,
Plaintiff,
vs.
CHARLES LOCKETT, et al.,
Defendants.

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Case No. 2:14-cv-68-WTL-WGH

Screening Entry Pursuant to 28 U.S.C. § 1915A(b)
Darnell Moon was formerly confined at the Federal Correctional Complex in Terre Haute,
Indiana (“the FCC”). He alleges in this action that the defendants violated his federally secured
rights. He seeks damages. The operative pleading setting forth his claims is the amended complaint
filed on March 24, 2014 (Dkt. 7).
Moon was a Aprisoner@ as defined by 28 U.S.C. ' 1915(h) at the time this action was filed.
Specifically, he was confined to a halfway house. This means that the Amended Complaint is
subject to the screening requirement of 28 U.S.C. § 1915A(b). Lagerstrom v. Kingston, 463 F.3d
621, 624 (7th Cir. 2006). This statute directs that the court dismiss a complaint or any claim within
a complaint which “(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id.
Applying the screening standard of 28 U.S.C. § 1915A(b) and the pleading standard of
Rule 8(a) of the Federal Rules of Civil Procedure, the legally insufficient claims must be
dismissed and the remaining claim may proceed, all consistent with the following:

1.

Moon’s claims are principally asserted pursuant to the theory recognized in Bivens

v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Bivens Aauthorizes the filing of
constitutional tort suits against federal officers in much the same way that 42 U.S.C. § 1983
authorizes such suits against state officers . . . .@ King v. Federal Bureau of Prisons, 415 F.3d 634,
636 (7th Cir. 2005). Jurisdiction for such a claim is derived from 28 U.S.C. § 1331. To state a
Bivens claim the plaintiff must allege a violation of the United States Constitution or a federal
statute. Goulding v. Feinglass, 811 F.2d 1099, 1102 (7th Cir. 1987).
2.

The amended complaint also asserts statutory civil rights claims and tort claims

under Indiana law.
3.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that pleadings contain

"a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." See
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).
a.
AA complaint must always . . . allege >enough facts to state a claim to relief that is
plausible on its face.=A Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d
797, 803 (7th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). AA 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).
b.
In reviewing a complaint, the court accepts the factual allegations as true, but
conclusory assertions or a recitation of a cause of action's elements are not. See Ray v. City
of Chicago, 629 F.3d 660, 662 (7th Cir. 2011)(“[W]e need not accept as true legal
conclusions, or threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.”) (internal citations omitted).
c.
A plaintiff may plead himself out of court by revealing in his complaint facts that
defeat his claim. See Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007); Ciarpaglini
v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). A claim’s insufficiency can be “based on the
lack of a cognizable legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990).

d.
Pro se complaints 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).
4.

At paragraphs 79–80 of the amended complaint, Moon alleges retaliation based on

his having filed grievances against prison staff. This claim is actionable as to his allegation that
prison staff took specific adverse actions against him by taunting him and by refusing him to move
him to a new cell after being assaulted by his cellmate, but is not actionable as to his allegation
that prison staff retaliated by bringing him cold meals and delaying his mail. The claim of
retaliation which is actionable is viable against only a person who has participated in the retaliation
may be liable. E.g., Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005). In this instance, that
claim extends to defendants Harrington (¶¶ 42, 52), Gates (¶¶ 42, 47, 52), Rumple (¶¶ 42, 47, 52,
59), Booth (¶¶ 43, 49), Collins (¶¶ 47, 52, 59), Lotz (¶¶ 51, 59), Betts (¶¶ 52, 59, 64, 76), Wingerd
(¶ 54), Lockett (¶¶ 60, 61), Church (¶ 60), Pitt (¶ 60), Boyer (¶ 60, 61), Rardin (¶¶ 60, 61), Beighley
(¶ 60), Rupska (¶ 60), English (¶ 60), Boylan (¶¶ 62, 68), Sullivan (¶ 63), Rogers (¶¶ 64, 67),
Tussey (¶ 75), and Iaucino (¶ 76). The claim of retaliation is not actionable as to defendants Peters,
Puthoff, Gibbens, Booker, Klink, Heiser, Pullen, Singleton, or Miller and is dismissed as to these
defendants.
5.

At paragraphs 81–84 of the amended complaint, Moon alleges that 21 of the

defendants “violated his substantive Due Process right to be free from oppressive and abusive
executive misconduct.” He also presents a claim that several of the defendants violated his Fifth
Amendment right to Equal Protection of the Law by singling him out “for unfair and
discriminatory treatment based on (1) his race, and (2) filing of complaints against staff . . . .”
These theories are misplaced in Moon’s present case. Claims based on the conditions of his
confinement and his treatment by prison staff are properly based on the Eighth Amendment’s

proscription against the imposition of cruel and unusual punishment. See Helling v. McKinney,
509 U.S. 25, 31 (1993)("It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth Amendment"; prison
officials have a duty to provide humane conditions of confinement by ensuring that inmates receive
adequate food, clothing, shelter, and medical care, and by taking reasonable measures to guarantee
the safety of the inmates); Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005)(A[C]onstitutional
claims must be addressed under the most applicable provision.@). The substantive Due Process
right and Fifth Amendment right to Equal Protection claims are therefore dismissed.
6.

Not surprisingly, much of the amended complaint centers on the Eighth

Amendment.
a.
Moon first alleges that the defendants failed to assign him to a new cell after
becoming aware that his cellmate was assaulting him. This allegation presents a a viable
Eighth Amendment claim against defendants Lockett (¶¶ 60, 61), Church (¶ 60), Pitt (¶
60), Boyer (¶ 60, 61), Rardin (¶¶ 60, 61), English (¶ 60), Wingerd (¶ 54), Tussey (¶ 75)
Gates (¶¶ 42, 47, 52), Beighley (¶ 60), Rupska (¶ 60), Harrington (¶¶ 42, 52), Betts (¶¶ 52,
64, 76), Rumple (¶¶ 42, 47, 52), and Collins (¶¶ 47, 52).
b.
Moon next alleges that the defendants failed to provide adequate medical care after
he was assaulted and this claim is viable as to the defendants he has specifically accused
of denying his requests for medical treatment. Those defendants are Wingerd (¶¶ 72, 74),
Tussey (¶ 74), and Gibbens (¶ 73).
c.
Moon next alleges that he was confined him for eight hours in a “dirty, feces and
urine infested cell” with his arms cuffed behind his back, while he was bleeding from open
razor wounds inflicted by his cellmate. The open wounds aspect of this allegation is
subsumed in the prior claim of the denial of medical care. The remaining conditions Moon
has described, for such a brief period, do not implicate the Eighth Amendment. Duran v.
Elrod, 760 F.2d 756 (7th Cir. 1985)(“The conditions of imprisonment, whether of pretrial
detainees or of convicted criminals, do not reach even the threshold of constitutional
concern until a showing is made of ‘genuine privations and hardship over an extended
period of time.’”)(quoting Bell v. Wolfish, 441 U.S. 520, 542 (1979)). This Eighth
Amendment claim is therefore dismissed.
d.
Claims against supervisory defendants for any viable claim under the Eighth
Amendment against other defendants, however, are associated with only the most

conclusory of allegations, and are therefore dismissed. Johnson v. Doughty, 433 F.3d 1001,
1011 (7th Cir. 2006).
7.

Moon alleges that the defendants delayed his outgoing mail, but has not presented

any specific factual allegations to support this claim and alleges no ill consequence and therefore
has failed to state a plausible claim for relief.
8.

Moon alleges that an Unnamed Disturbance Control Team (DCT) Officer violated

his Eighth Amendment rights by assaulting him while handcuffed and that other DCT Officers and
defendant Singleton also violated his Eighth Amendment rights by failing to intervene. This claim
requires further development for at least the reason that the unnamed DCT officers must be
identified.
9.

Claims are asserted pursuant to 42 U.S.C. '' 1985 and 1986. Section 1985 of title

42 concerns conspiracies to violate civil rights. At the outset, the amended complaint does not
plausibly allege the formation or terms of a conspiracy. As with so many features of the amended
complaint, conclusory allegations do not support an actionable claim. See Iqbal, 556 U.S. at 678–
79 (“[Courts] are not bound to accept as true a legal conclusion couched as a factual allegation.”).
Apart from this, moreover, the specific elements of a viable claim under these statutes are absent.
a.
Section 1985(1) deals with conspiracies to prevent persons from holding office or
performing duties of a public office. Section 1985(2) pertains to conspiracies to obstruct
justice or to interfere with witnesses. Section 1985(3) deals with conspiracies intended to
deprive an individual or class of persons of protected rights based on “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus.” Aulson v. Blanchard,
83 F.3d 1, 3 (1st Cir. 1996) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
The Seventh Circuit “has clarified that otherwise ‘class-based invidiously discriminatory
animus’ includes ‘conspiracies to discriminate against persons based on sex, religion,
ethnicity, or political loyalty.’” Brokaw v. Mercer County, 235 F.3d 1000, 1024 (7th Cir.
2000) (quoting Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988)). “[S]ection 1985(3)
provides no substantive rights in itself, but rather provides a remedy for any violation of
the rights that it designates.” Munson v. Friske, 754 F.2d 683, 694 (7th Cir. 1985).
b.
“The allegations of the [amended] Complaint do not implicate a violation of
subsection (1) of Section 1985, which provides a remedial action to persons injured from

a conspiracy to prevent federal officers from performing their duties, or subsection (2)[.]
A remedial action is authorized under Section 1985(2) where a plaintiff alleges and proves
a conspiracy: (1) to intimidate a party, witness, or juror in a federal court proceeding, or
(2) to obstruct justice in a state court proceeding.” Spence v. Caputo, 2015 WL 630294, at
*28 (W.D.Pa. Feb. 12, 2015). The amended complaint contains no allegations that could
plausibly be construed as stating a claim under either of these subsections.
c.
To establish liability for conspiracy under 42 U.S.C. ' 1985(3), a plaintiff must
establish: 1) a conspiracy; 2) that the purpose of the conspiracy was to deprive a person of
equal protection of the laws, or to deprive a person of his privileges and immunities under
the laws; 3) that an act was committed in furtherance of the conspiracy; and 4) that an
injury occurred as a result. See Griffin v. Breckenridge, 403 U.S. 88, 102-04 (1971). There
is no plausible allegation that any of the defendants= actions were motivated by the
necessary race or class considerations; thus, the complaint fails to state a Section 1985
claim. Hossman v. Blunk, 784 F.2d 793 (7th Cir. 1986).
d.
And “in the absence of a viable claim under § 1985(3), a § 1986 claim cannot exist,”
this is not a plausible claim for relief. Hicks v. Resolution Trust Corp., 970 F.2d 378, 382
(7th Cir. 1992).
e.
Claims are asserted pursuant to 42 U.S.C. '' 1985 and 1986 are therefore dismissed
as legally insufficient.
10.

Moon’s claims for the intentional infliction of emotional distress under Indiana law

are actionable, if at all, as to the allegations (i) in paragraph 53 against defendants Lotz, Collins,
Gates, Rumple, and Harrington, (ii) in paragraphs 54 and 56 against defendant Wingerd, (iii) in
paragraph 57 against the Unknown DCT Officer and defendant Wingerd, (iv) in paragraph 59
against defendants Betts, Rumple, Lotz, and Collins, and (v) in paragraph 65 against defendant
Rogers.
11.

Moon’s claim for negligence under Indiana law for allowing his cellmate to assault

him with a razor is actionable, if at all, as to defendants Harrington (¶¶ 42, 52), Gates (¶¶ 42, 47,
52), Rumple (¶¶ 42, 47, 52), Booth (¶¶ 43, 49), Basinger (¶¶ 44, 49), Collins (¶¶ 47, 52), Lotz (¶
51), Betts (¶¶ 52, 64, 76), Wingerd (¶ 54), Lockett (¶¶ 60, 61), Church (¶ 60), Pitt (¶ 60), Boyer (¶
60, 61), Rardin (¶¶ 60, 61), Beighley (¶ 60), Rupska (¶ 60), English (¶ 60), Boylan (¶¶ 62, 68),
Sullivan (¶ 63), Rogers (¶¶ 64, 65, 67), Tussey (¶ 75), and Iaucino (¶ 76).

12.

At paragraph 102, Moon alleges that the Unnamed DCT Officer, Defendant

Wingerd, and Defendant Singleton are liable for battery under Indiana law. This claim shall
proceed as to both the named and unnamed defendants.
13.

No final judgment shall issue at this time as to the claims dismissed in this Entry.

14.

Separate orders will be issued (a) dealing with the issuance and service of process

on named defendants against whom one or more claims are proceeding, and (b) directing further
development of the claim against the unnamed DCT Officer.
IT IS SO ORDERED.

Date: 5/11/15

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

Distribution:
DARNELL WESLEY MOON
510 N. Fountain Street, Apt 5
Cape Girardeau, MO 63701