GRIFFITH v. INDIANA DEPARTMENT OF CORRECTION et al

Filing 8

ORDER SCREENING COMPLAINT, SEVERING MISJOINED CLAIMS, AND DIRECTING FURTHER PROCEEDINGS - In summary, the following claims shall proceed in this case: the Post-Conviction Interference Claims against Defendants Hinton and Mills as set forth in Count I. The Retaliatory Transfer Claims, Property Loss Claims, Hunger Strike Claims, and Grievance Interference Claims may only proceed in a separate action. As stated above, Griffith shall have up to and including June 16, 2023, to notify the Court wh ether he wishes the Court to sever any of the misjoined claims into new actions and, if so, which claims he wishes to pursue. If he fails to do so, the misjoined claims will be considered abandoned and dismissed without prejudice. This summary of c laims includes all of the potentially viable claims identified by the Court. All other claims have been dismissed. If Mr. Griffith believes that additional claims were alleged in the complaint, but not identified by the Court, he shall have through J une 16, 2023, to identify those claims. Summons were issued to all defendants and they have appeared by counsel. Defendants Heather Mills and Brenda Hinton are directed to answer or otherwise respond to the complaint within 28 days of the date this Order is issued. Nothing in this Order prohibits the filing of a proper motion pursuant to Rule 12 of the Federal Rules of Civil Procedure. Signed by Judge James Patrick Hanlon on 5/18/2023.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
FERNANDO C. GRIFFITH,

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Plaintiff,
v.
INDIANA DEPARTMENT OF
CORRECTION,
HEATHER MILLS,
BRENDA HINTON,
FRANK VANIHEL,
KEVIN GILMORE,
MARZKE,
MODROW,
GAPSKE,
Defendants.

No. 2:23-cv-00041-JPH-MJD

ORDER SCREENING COMPLAINT, SEVERING MISJOINED CLAIMS,
AND DIRECTING FURTHER PROCEEDINGS
Plaintiff Fernando Griffith is a prisoner currently incarcerated at Miami
Correctional Facility ("Miami"). Represented by counsel, he filed this action under
42 U.S.C. § 1983 and state law, alleging that he was denied access to the courts,
denied adequate medical treatment, retaliated against for engaging in protected
First Amendment activity, and deprived of his personal property. Because Mr.
Griffith is a "prisoner" who has sued government defendants, the Court assesses
"whether joinder is proper under Rule 20 before considering the merits" of the
claims as required by 28 U.S.C. § 1915A. Dorsey v. Varga, 55 F.4th 1094 (7th
Cir. 2022).

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I. Screening Standard
When screening a complaint, the Court must dismiss any portion that is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To
determine 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 Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).
Under that standard, a complaint must include "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "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).
II. The Complaint
Mr. Griffith names eight defendants in his complaint: (1) the Indiana
Department of Correction ("IDOC"); (2) Heather Mills; (3) Brenda Hinton; (4)
Frank Vanihel; (5) Kevin Gilmore; (6) Correctional Officer Marzke; (7)
Correctional Officer Modrow; and (8) Grievance Specialist Gapske. He seeks
money damages, injunctive relief, and an award of fees and costs. He sets forth
his allegations in six counts, which the Court summarizes as follows:
A.

Count I: First Amendment Denial of Access to Courts—Defendants
Mills and Hinton
Since 2004, Mr. Griffith has been engaged in litigation against the State of

Indiana seeking post-conviction relief from a criminal conviction. In Cause No.
41C01-0405-PC-000001, both Mr. Griffith and the State sought summary
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judgment. The state court declined to enter summary judgment as to eight issues
and held three evidentiary hearings. On January 26, 2021, the state court
entered an Order directing the parties to file proposed Findings of Fact and
Conclusions of Law within 30 days.
Defendants Mills and Hinton worked in the law library at Wabash Valley
Correctional Facility ("Wabash Valley"), where Mr. Griffith was incarcerated. On
February 5, 2021, Mr. Griffith asked Ms. Mills and Ms. Hinton to add him to the
Wabash Valley deadline list, which reserves time in the law library for inmates
with upcoming filing deadlines. During the 30-day period that Mr. Griffith had
to submit his proposed Findings of Fact and Conclusions of Law, Ms. Mills and
Ms. Hinton refused to add him to the list on more than one occasion. During
that time period, they also interfered with his ability to access the law library
during the times he was placed on the deadline list. They cut short his scheduled
time in the library or refused him access to digital copies of the exhibits from his
criminal trial.
Mr. Griffith received two extensions of time from the state court, but Ms.
Mills and Ms. Hinton continued to interfere with his access to the law library. As
a result, Mr. Griffith could not timely complete and file his proposed Findings of
Fact and Conclusions of Law. Eventually, the state court entered an order on
summary disposition in which it adopted the State's uncontested proposed
Findings of Fact and Conclusions of law, thereby denying Mr. Griffith's petition
for post-conviction relief.

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Mr. Griffith intended to file a motion to correct error to address certain
inaccuracies in the state court's order. He had 30 days to do so and asked Ms.
Mills to place him on the deadline list. Ms. Mills confirmed Mr. Griffith's pending
deadline, but she refused to place him on the deadline list and interfered with
his ability to use the law library when he was on the deadline list. As a result,
Mr. Griffith could not file his motion to correct error until 5 days after the
deadline. The motion was denied because it was not timely filed.
B.

Count II: First Amendment Retaliatory Transfer—Defendants
Vanihel and Gilmore
Defendant Vanihel was the warden of Wabash Valley. Defendant Gilmore

was a deputy warden at Wabash Valley. Between February and October 2021,
Mr. Griffith filed numerous grievances about his inability to access his own legal
materials, get outside legal materials or assistance, and use Wabash Valley's law
library. The grievances were all denied. On more than one occasion in 2021, Mr.
Griffith threatened legal action against Wabash Valley staff for the continued
deprivation of his right to access the courts. In retaliation for filing such
grievances and making threats of litigation, Warden Vanihel and Deputy Warden
Gilmore initiated the process of transferring Mr. Griffith from Wabash Valley to
Miami. He was transferred on or about October 24, 2021. Miami is more
restrictive and dangerous than Wabash Valley.
C.

Count III: State Law Claim for Loss of Property—IDOC
On October 14, 2021, Mr. Griffith was told he would be transferred. He

began to pack his belongings but, after 10 minutes, was interrupted by
sergeants, who ordered him to place his items on a flat cart to be inventoried and
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packed by prison custody staff. Mr. Griffith did not have time to inventory and
pack personal belongings in his cell. He also did not have time to retrieve a large
collection of legal materials stored in Wabash Valley's law library, including
audio-visual evidence related to his criminal conviction. He asked one of the
sergeants to contact the law library to request that the legal materials be sent to
the new facility with the rest of his personal belongings. The sergeant did so and
told Mr. Griffith that his belongings and legal materials would be forwarded to
his new facility.
Three days later, Mr. Griffith's personal belongings and legal materials
were delivered to Miami, but numerous items were missing or damaged. Included
among the missing or damaged items were transcripts, discovery responses,
briefs, and audio-visual materials from Mr. Griffith's original criminal trial. Mr.
Griffith provided notice of the loss and damage to the State. He has tried to
mitigate his loss by requesting replacement copies from the state court.
D.

Count IV: First Amendment Retaliation Against Defendants
Marzke and Modrow
In late November 2021, Mr. Griffith began a hunger strike to protest his

retaliatory transfer, the loss of his property, and his ongoing inability to access
the law library. Correctional Officers Marzke and Modrow knew why Mr. Griffith
was engaged in a hunger strike. Several days after Mr. Griffith began his hunger
strike, Mr. Griffith lost consciousness, fell, and struck his head, causing a lump
on the back of his head and a one-inch laceration on his forehead. When he
regained consciousness, he saw that he was bleeding from his forehead. He also
was dizzy and had an intense headache and blurred vision.
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Mr. Griffith sought medical assistance using his cell's intercom for about
10 minutes without a response. Officer Marzke responded but did not call for
help. Instead, she taunted Mr. Griffith with comments such as, "fight the power"
or "bet you wish you ate, don't you." Dkt. 1 at 12. Mr. Griffith kept pushing his
intercom button to seek medical help. Officer Modrow responded but he also
refused to get help for Mr. Griffith. He threatened a conduct report for interfering
with staff and sarcastically asked Mr. Griffith if he wanted a tray of food. Medical
staff were never summoned to help Mr. Griffith. Mr. Griffith's hunger strike was
a motivating factor in Officer Marzke's and Modrow's decision to deny him
necessary medical care.
E.

Count V: Eighth Amendment Deliberate Indifferent to Serious
Medical Needs Against Defendants Marzke and Modrow
Mr. Griffith brings Eighth Amendment claims of deliberate indifference to

serious medical needs against Defendants Marzke and Modrow based on the
same facts alleged in Count IV.
F.

Count VI: First Amendment Denial of Access to Courts Against
Defendant Gapske
Since arriving at Miami, Mr. Griffith has filed no less than 20

administrative grievances related to his conditions of confinement and access to
the courts. Grievance Specialist Gapske has failed to respond to the grievances
in a timely fashion and has often failed to respond to the grievances at all.
Because of that failure to respond, Mr. Griffith has been effectively foreclosed
from seeking redress for violations of his constitutional rights.

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III. Claims that Will Proceed in this Action
District courts are encouraged to review complaints to ensure that
unrelated claims against different defendants do not proceed in a single lawsuit.
See Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017); see also Antoine v.
Ramos, 497 F. App'x 631, 635 (7th Cir. 2012) (stating "district court should have
rejected [plaintiff's] attempt to sue 20 defendants in a single lawsuit raising
claims unique to some but not all of them") (citing Wheeler v. Wexford Health
Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012)); Owens v. Hinsley, 635 F.3d
950, 952 (7th Cir. 2011). A plaintiff is not permitted to treat a single federal
complaint as a sort of general list of grievances. Mitchell v. Kallas, 895 F.3d 492,
502–03 (7th Cir. 2018) ("Out of concern about unwieldy litigation and attempts
to circumvent the [Prison Litigation Reform Act's] PLRA's fee requirements, we
have urged district courts and defendants to beware of 'scattershot' pleading
strategies.").
Federal Rules of Civil Procedure 18 and 20 guide this analysis. Federal
Rule of Civil Procedure 20(a)(2), permits a plaintiff to join defendants in a single
action if "(A) any right to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and (B) any question of law or fact
common to all defendants will arise in the action." "[M]ere overlap between
defendants is not enough." Thompson v. Bukowski, 812 F. App'x 360, 363
(7th Cir. 2020).

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Once Rule 20 is satisfied, "[a] party asserting a claim to relief as an original
claim, . . . may join, either as independent or as alternate claims, as many claims,
legal, equitable, or maritime, as the party has against an opposing party." Fed.
R. Civ. P. 18(a); UWM Student Assoc. v. Lovell, 888 F.3d 854, 863 (7th Cir. 2018)
(court must apply Rule 20 before Rule 18). "Thus multiple claims against a single
party are fine, but Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2." George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007).
"Unrelated claims against different defendants belong in different suits."
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). When a claim includes
improperly joined claims, "[t]he court may . . . add or drop a party. The court
may also sever any claim against a party." Fed. R. Civ. P. 21. A district court has
broad discretion to sever a claim under Rule 21. Rice v. Sunrise Express, Inc.,
209 F.3d 1008, 1016 (7th Cir. 2000); see also Gaffney v. Riverboat Servs. of Ind.,
Inc., 451 F.3d 424, 442 (7th Cir. 2006) (reviewing district court's decision to sever
the plaintiff's claims for an abuse of discretion). It may exercise that discretion
"to sever any claims that are 'discrete and separate' in the interest of judicial
economy and to avoid prejudice." Vermillion v. Levenhagen, 604 F. App'x 508,
513 (7th Cir. 2015) (citing Gaffney, 451 F.3d at 442; Rice, 209 F.3d at 1016; Otis
Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738, 743 (7th Cir. 1985)). To
be "discrete and separate . . . one claim must be capable of resolution despite
the outcome of the other claim." Gaffney, 451 F.3d at 442 (internal quotation
marks omitted).
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As the above discussion makes clear, Mr. Griffith is pursuing claims
against five separate defendants based on five separate series of events: (1)
claims against Ms. Mills and Ms. Hinton for interfering with his ability to litigate
his state court post-conviction relief case (Count I) ("Post-Conviction Interference
Claims"); (2) retaliatory transfer claims against Warden Vanihel and Deputy
Warden Gilmore (Count II) ("Retaliatory Transfer Claims"); (3) state-law property
loss claims against the IDOC based on property being lost or damaged when he
was transferred to Miami (Count III) ("Property Loss Claims"); (4) claims against
Officers Marzke and Modrow based on their actions after he fell during his
hunger strike (Counts IV and V) ("Hunger Strike Claims"); and (5) claims against
Grievance Specialist Gapske based on the failure to respond to his grievances
(Count VI) ("Grievance Interference Claims").
In the Post-Conviction Interference Claims (Count I), Mr. Griffith has
adequately alleged that Defendants Mills and Hinton interfered with his right of
access to the courts when they interfered with his ability to make various filings
after the state court held three evidentiary hearings in connection with his
petition for post-conviction relief, and this action shall proceed on those claims.
See In re Maxy, 674 F.3d 658, 661 (7th Cir. 2012) (plaintiff can state an access
to courts claim by alleging that he was prevented from litigating a non-frivolous
challenge to his criminal conviction). These claims were chosen because they
survive the screening requirement of § 1915A, and they are freestanding claims
that do not overlap with any other claims.

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IV.

Misjoined Claims

The Retaliatory Transfer Claims (Count II), the Property Loss Claims
(Count III), the Hunger Strike Claims (Counts IV and V), and the Grievance
Interference Claims (Count VI), however, are brought against separate (and nonoverlapping) sets of defendants and do not arise from same transaction,
occurrence, or series of transactions or occurrences as the Post-Conviction
Interference Claims. Each set of claims relates to a discrete set of events and can
be resolved despite the outcome of any of the other sets of claims. As a result,
these claims are misjoined and cannot proceed in the same action as the PostConviction Interference Claims. As explained, in such a situation, "[t]he court
may . . . sever any claim against a party." Fed. R. Civ. P. 21. Generally, if a district
court finds that a plaintiff has misjoined parties, the Court should sever those
parties or claims, allowing those grievances to continue in spin-off actions, rather
than dismiss them. Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000).
The misjoined claims shall either be severed into new actions or dismissed
without prejudice. Mr. Griffith is the master of his complaint and shall be given
the opportunity to determine which course is followed. Myles v. United States,
416 F.3d 551, 552 (7th Cir. 2005) (noting that the composition and content of
the complaint are entirely the responsibility of the plaintiff). If new actions are
opened, Mr. Griffith will be responsible for the filing fee associated with each new
case. In addition, he will be required to file an amended complaint for each new
case, and the screening requirement of 28 U.S.C. § 1915A(b) will be triggered for
each new case. The Court notes that, as currently alleged, the Property Loss
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Claims do not fall within this Court's subject-matter jurisdiction because they
are state-law claims, and there is no diversity of citizenship. See 28 U.S.C.
§ 1331 (federal-question jurisdiction); 28 U.S.C. § 1332 (diversity jurisdiction).
In addition, the Hunger Strike Claims (Counts IV and V), and the Grievance
Interference Claims (Count VI), are alleged against employees of Miami
Correctional Facility, and the proper venue for such claims is the Northern
District of Indiana.
Mr. Griffith shall have through June 16, 2023, in which to notify the
Court whether he wishes the Court to sever the misjoined claims into new actions
and, if so, which of the misjoined claims he wishes to pursue. If Mr. Griffith
fails to so notify the Court by that date, the misjoined claims will be
dismissed without prejudice.
IV. Conclusion and Service of Process
In summary, the following claims shall proceed in this case: the PostConviction Interference Claims against Defendants Hinton and Mills as set forth
in Count I. The Retaliatory Transfer Claims, Property Loss Claims, Hunger Strike
Claims, and Grievance Interference Claims may only proceed in a separate
action. As stated above, Griffith shall have up to and including June 16, 2023,
to notify the Court whether he wishes the Court to sever any of the misjoined
claims into new actions and, if so, which claims he wishes to pursue. If he fails
to do so, the misjoined claims will be considered abandoned and dismissed
without prejudice.

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This summary of claims includes all of the potentially viable claims
identified by the Court. All other claims have been dismissed. If Mr. Griffith
believes that additional claims were alleged in the complaint, but not identified
by the Court, he shall have through June 16, 2023, to identify those claims.
Summons were issued to all defendants and they have appeared by
counsel. Defendants Heather Mills and Brenda Hinton are directed to answer or
otherwise respond to the complaint within 28 days of the date this Order is
issued.
Nothing in this Order prohibits the filing of a proper motion pursuant to
Rule 12 of the Federal Rules of Civil Procedure.
SO ORDERED.
Date: 5/18/2023

Distribution:
Electronic service to Indiana Department of Correction:
Heather Mills
Brenda Hinton
(All at Wabash Valley Correctional Facility)
All Electronically Registered Counsel

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