TRIPP et al v. CARTER et al

Filing 24

ENTRY Screening Second Amended Complaint and Directing Further Proceedings - The plaintiff's First Amendment retaliation claims that Brian Smith reassigned him to an undesirable job and that Christopher Williams ordered a cell search, both i n retaliation for the plaintiff's filing of grievances, shall proceed. These claims are the only plausible claims identified by the Court. These defendants have already been served and have appeared in this action. A scheduling order will issue after defendants respond to the second amended complaint (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge Jane Magnus-Stinson on 11/22/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

TERRY TRIPP,
Plaintiff,
v.
BRIAN SMITH Warden Putnamville
Correctional Facility,
CHRISTOPHER WILLIAMS Putnamville
Correctional Facility,
Defendants.

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No. 2:17-cv-00428-JMS-MPB

Entry Screening Second Amended Complaint and Directing Further Proceedings
I. Screening Standard
On November 14, 2017, the plaintiff filed a second amended complaint, dkt. [22]. The
second amended complaint is now the operative complaint in this action and is subject to the
screening requirement of 28 U.S.C. § 1915A(b). 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 the plaintiff
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).
II. The Second Amended Complaint
The plaintiff brings his claims against the defendants pursuant to 42 U.S.C. § 1983.
Although the second amended complaint omits some factual allegations contained in the first
amended complaint, the plaintiff alleges that Brian Smith, Warden of Putnamville, ordered prison
staff to reassign the plaintiff to a job cleaning toilets in retaliation for filing grievances related to
his exclusion from work based upon his use of the law library.
The plaintiff also alleges that defendant Chris Williams ordered prison staff to search the
plaintiff’s cell in retaliation for filing grievances alleging that Williams “covered for staff
misconduct” when Williams responded to inmate grievances. This cell search resulted in the
confiscation of his prison litigation manual. He alternatively alleges that Sergeant Hughett ordered
the cell search.
The plaintiff alleges that Sergeant Hooker was biased against him when Sergeant Hooker
presided over his disciplinary hearing and that Sergeant Hughett presided over hearings of
fictitious conduct reports against him. The plaintiff alleges that Rob Carter, IDOC Commissioner
and Brian Smith, Warden of Putnamville, were made aware of the plaintiff’s concerns and ignored
them.
The second amended complaint includes additional allegations of misconduct against
prison staff not named as defendants in the second amended complaint.

III. Discussion of Claims
Applying the screening standard to the factual allegations in the second amended complaint
certain claims are dismissed while other claims shall proceed as submitted.
First, the plaintiff’s allegations against people not named as defendants in the amended
complaint are dismissed. Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (“[T]o
make someone a party the plaintiff must specify him in the caption and arrange for service of
process.”) (citing Fed.R.Civ.P. 10(a) (“In the complaint the title of the action shall include the
names of all the parties.”)).
Second, the claim against the Indiana Department of Correction Commissioner Rob Carter
is dismissed because the alleged failure of the commissioner to respond to letters or complaints
about the conditions of Tripp=s confinement is not sufficient to bring him into the zone of liability
under ' 1983, because “[t]he general responsibility of a warden for supervising the operation of a
prison is not sufficient to establish personal liability.” Estate of Rosenberg v. Crandell, 56 F.3d
35, 37 (8th Cir. 1995). Most importantly, Tripp’s allegations do not suggest a plausible basis for
concluding that the commissioner caused or participated in the alleged constitutional deprivation.
See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); 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).
Merely acting or not acting on Tripp’s complaints did not cause the underlying denial of
rights Tripp alleges. If an official, who is not otherwise responsible for allegedly unconstitutional
conditions or actions, could be held liable upon being notified by the plaintiff, then a plaintiff could
choose to bring any and all officials within the scope of liability simply by writing a series of

letters. To allow liability to be based upon “such a broad theory. . . [would be] inconsistent with
the personal responsibility requirement for assessing damages against public officials in a ' 1983
action.” Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir. 1982); Vance v. Rumsfeld, 701 F.3d 193,
204, (7th Cir. 2012) (knowledge of subordinates’ misconduct is not enough for liability); George
v. Smith, 507 F.3d 605, 609 (7th Cir. Cir. 2007) (“Only persons who cause or participate in the
violations are responsible”; an official “who rejects an administrative complaint about a completed
act of misconduct does not [cause or contribute to the violation]”).
The claims against Sergeant Hughett and Sergeant Hooker are dismissed because the
allegations against them relate to their actions in association with administering the disciplinary
process. The plaintiff alleges that Sergeant Hughett and Sergeant Hooker deprived him of earned
credit time when they presided over his disciplinary hearings. He alleges that Sergeant Hughett
presided over disciplinary hearings involving fictitious conduct reports and that Sergeant Hooker
was biased when Sergeant Hooker presided over the plaintiff’s disciplinary hearings. There is no
constitutional right to avoid false disciplinary charges “because ordinarily, ‘even assuming
fraudulent conduct on the part of prison officials, the protection from such arbitrary action is found
in the procedures mandated by due process.’” Lagerstrom v. Kingston, 463 F.3d 621, 624-25 (7th
Cir. 2006) (quoting McPherson v. McBride, 188 F.3d 784, 787 (7th Cir. 1999)); see Henderson v.
Lane, 182 F.3d 922 1999 WL 459196 (7th Cir. 1999) (holding that it is not an Eighth Amendment
violation to be subject to prison discipline even if “framed”).
As the plaintiff acknowledges, claims for the restoration of earned credit time must be
brought as a habeas petition, not as a § 1983 claim. Heck v. Humphrey, 512 U.S. 477 (1994);
Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2007). Similarly, claims regarding the process by

which the plaintiff was deprived of earned time credit also must be brought in a habeas petition.
Id.
The plaintiff alternatively alleges that Sergeant Hughett, rather than Chris Williams,
ordered the search of the plaintiff’s belongings. But he does not allege that Sergeant Hughett
ordered the search as a means of retaliation against the plaintiff. The mere allegation that a
corrections officer ordered the search of an inmate’s belongings is insufficient to allege a
constitutional violation.
The plaintiff’s First Amendment retaliation claims that Brian Smith reassigned him
to an undesirable job and that Christopher Williams ordered a cell search, both in retaliation
for the plaintiff’s filing of grievances, shall proceed. These claims are the only plausible
claims identified by the Court. These defendants have already been served and have
appeared in this action. A scheduling order will issue after defendants respond to the second
amended complaint.
IT IS SO ORDERED.

Date: 11/22/2017

Distribution:
TERRY TRIPP
103679
PUTNAMVILLE – CF
Electronic Service Participant – Court Only
Electronic service to:
Brian Smith, Warden
Christopher Williams
(All at Putnamville Correctional Facility)