United States District Court, S.D. Indiana, Indianapolis Division
COMPLAINT, GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, DISCUSSING SEVERANCE,
AND DIRECTING FURTHER PROCEEDINGS
TANYA WALTON PRATT, District Judge.
The plaintiff's motion to proceed in forma pauperis (Dkt. 3) is GRANTED. An assessment of an initial partial filing fee is not feasible at this time.
The plaintiff's motion for the appointment of counsel (Dkt. 4) is DENIED as premature. The defendants have not yet been served and the Seventh Circuit has found that "until the defendants respond to the complaint, the plaintiff's need for assistance of counsel... cannot be gauged." Kadamovas v. Stevens, 706 F.3d 843, 846 (7th Cir. 2013).
The clerk shall update the docket to reflect the spelling of the plaintiff's middle name as "Tye."
The plaintiff, Jason Tye Myers ("Mr. Myers") is currently incarcerated at the Plainfield Correctional Facility. He brings this civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that when he was confined at the Correctional Industrial Facility ("CIF") his constitutional rights were violated. He has named nine (9) defendants: 1) the Indiana Department of Correction (IDOC"); 2) former Superintendent Donna L. Carneygee; 3) former Assistant Superintendent of Re-Entry Tim Purcell; 4) former Assistant Superintendent of Operations Kathy Griffin; 5) former Facility Policy and Grievance Coordinator Robert Stafford; 6) former Executive Assistant/Legal Liaison/Mailroom Supervisor Ms. Woods; 7) Unknown Party former Department Policy Manager at IDOC; 8) Pen Products Laundry Supervisor Russell Hiatt; and 9) Final Reviewing Authority of Grievance Procedures at IDOC L.A. Vanatta. He sues the defendants in their individual and official capacities. He seeks compensatory and punitive damages and injunctive relief.
The complaint is now subject to the screening required by 28 U.S.C. § 1915A(b). This statute directs that the Court dismiss a complaint or any claim within a complaint that "(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. "A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief." Jones v. Bock, 549 U.S. 199, 215 (2007).
III. Directions to Show Cause
Mr. Myers' first claim, asserted against defendants IDOC, Carneygee, Purcell, Griffin, and Stafford, is that he filed an appeal of the dismissal of a state law claim, but his appeal was dismissed on December 14, 2010, because he failed to re-file an appendix as ordered by the appellate court. Mr. Myers alleges that he could not re-file the appendix because CIF staff failed to give it to him when it was mailed to him at the prison. He asserts a First Amendment claim of denial of access to the courts based on these facts. Although the appendix, or part of it, was finally returned to Mr. Myers in 2013, its return is not what caused his appeal to be dismissed.
The statute of limitations for a section 1983 claim in Indiana is two years. Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013). "A section 1983 claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action." Id. at 591. "[W]hen the allegations of the complaint reveal that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011). The plaintiff shall have through April 27, 2015, in which to show cause why this claim should not be dismissed for failure to state a claim upon which relief can be granted because it is not timely. There are other reasons that claims against certain defendants should be dismissed in addition to the issue of the statute of limitations, but that analysis will not be set forth until it is determined whether there is any basis to treat the denial of access claim as timely.
IV. Misjoined Claim and Severance
In George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), the Court of Appeals explained that "[u]nrelated claims against different defendants belong in different suits." The complaint does not set forth any claim that properly joins all defendants.
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 ...