United States District Court, S.D. Indiana, Indianapolis Division
GARY A. JACKSON, SR., Plaintiff,
BRUCE LEMMON, et al., Defendants.
ENTRY ON PENDING MOTIONS
William T. Lawrence, Judge
cause is before the Court on the following motions filed by
the Plaintiff: Motion for Leave to File Second Amended
Complaint and Withdraw First Amended Complaint (Dkt. No.
Motion for Sanctions (Dkt. No. 67); Motion for Full
Electronic Filing (Dkt. No. 74); Motion for Emergency Hearing
(Dkt. No. 77); Motion for Recusal (Dkt. No. 79); and Second
Motion for Recusal (Dkt. No. 81). Also before the Court is
the Defendants' Motion for Summary Judgment (Dkt. No.
63). The Court DENIES the Plaintiff's
motions and GRANTS the Defendants'
motion for summary judgment for the reasons set forth below.
2013, Gary Jackson was convicted of Sexual Misconduct with a
Minor, a C Felony, and was sentenced to home detention and
probation. He violated the terms of his probation, and his
probation was revoked on July 16, 2015. He then was sentenced
to two years in the Indiana Department of Correction
(“IDOC”). In July 2016, Mr. Jackson was released
to parole and subject to the Parole Stipulations for Sex
Offenders. Among other restrictions, the parole conditions
restrict a parolee's contact with children. Mr.
Jackson's parole ended on July 12, 2017.
this Court's ruling on the Defendants' motion to
dismiss (Dkt. No. 44), three claims, all related to alleged
violations of procedural due process, remained: (1) the claim
against the Indiana Parole Board for failing to provide an
individualized assessment before applying any parole
condition other than those listed in Indiana Code §
11-13-13-3-4; (2) the claim against the Indiana Parole Board
for “setting a standard form” and not instructing
employees how to determine which conditions apply to
parolees; and (3) the claim that Agent Pine did not give Mr.
Jackson a 10-day notification and chance to be heard
regarding the GPS-monitoring condition. The Court interpreted
the first two claims as having been brought against each of
the Parole Board Members in that member's official
Jackson then sought to name each Parole Board Member in his
individual capacity so that he could seek monetary damages
from each member as an individual. The Court denied that
motion, finding that any claim that Mr. Jackson brought
against the Parole Board Members in their individual
capacities would necessarily be based on their decision
regarding his parole, not the procedural due process claims
that remained in this case. As the Court pointed out, it is
well settled that parole board members are absolutely immune
from suit for their decisions to grant, deny, or revoke
parole. Smith v. Gomez, 550 F.3d 613, 619 (7th Cir.
2008); Wilson v. Kelkhoff, 86 F.3d 1438, 1444 (7th
Cir. 1996). The Court further pointed out that if Mr. Jackson
succeeded on the claims that remained before the Court, he
would be entitled only to have the Indiana Parole Board
reconsider his conditions of parole to remedy any
constitutional due process violation. See Dkt. No.
Motion for Leave to File Second Amended Complaint
Jackson has filed a motion for leave to file a second amended
complaint and motion to withdraw the first amended complaint.
Under the Federal Rules of Civil Procedure, a party may amend
a complaint “with the opposing party's written
consent or the court's leave, ” which “should
[be] freely give[n]” when “justice so
requires.” Fed.R.Civ.P. 15(a)(2); see Soltys v.
Costello, 520 F.3d 737, 743 (7th Cir. 2008). Although
Rule 15 provides for a liberal pleading standard, a district
court may deny leave to amend for undue delay, bad faith,
dilatory motive, prejudice, or futility. See Foman v.
Davis, 371 U.S. 178, 182 (1962).
district court does not abuse its discretion in denying leave
to amend if the proposed repleading would be futile . . .
.” Garcia v. City of Chicago, 24 F.3d 966, 970
(7th Cir. 1994) (internal citations omitted); see also
Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir.
2012) (“District courts have broad discretion to deny
leave to amend . . . where the amendment would be
futile.”). Futile repleadings include restating the
same facts using different language, reasserting claims that
have been previously determined, and the inability to survive
a motion to dismiss. See Garcia, 24 F.3d at 970
(internal citations omitted); Bower v. Jones, 978
F.2d 1004, 1008 (7th Cir. 1992). For the reasons explained
below, the proposed repleading would be futile.
to the extent that Mr. Jackson attempts to assert claims
under 42 U.S.C. §§ 1981, 1985, or 1986, those
claims would be futile, as those statutes relate to race or
class-based discrimination, which Mr. Jackson does not
allege. See, e.g., Riley v. Elkhart Cmty.
Sch., 829 F.3d 886, 892 (7th Cir. 2016) (“Section
1981 causes of action are limited to discrimination claims
based on race.”) (citations omitted); Smith,
550 F.3d at 617 (“Section 1985(3) prohibits a
conspiracy to deprive another of equal protection under the
law . . ., but the conspiracy must be motivated by racial[ ]
or other class-based discriminatory animus” and
“status as a parolee is not considered a ‘suspect
class' for equal-protection purposes.”);
Katz-Crank v. Haskett, 843 F.3d 641, 650 (7th Cir.
2016) (failure of a § 1985 claim defeats a § 1986
leaves Mr. Jackson's § 1983 claims. To the extent
that Mr. Jackson seeks to assert claims against Liberty
Behavioral Health Corporation, Indiana Sex Offender
Monitoring and Management (INSOMM); Indiana Department of
Corrections (IDOC); Indiana Parole District 3; Indiana Parole
Board; and Indiana Attorney General's Office, those
claims are not viable under § 1983, as none of those
entities is a person and therefore none is subject to suit
under § 1983. See, e.g., Will v. Mich.
Dept. of State Police, 491 U.S. 58 (1989).
any claim asserted in the proposed second amended complaint
against any defendant in his or her official capacity also
would be futile, as Mr. Jackson could not recover damages or
receive injunctive relief. The Eleventh Amendment generally
precludes a citizen from suing a state or one of its agencies
or departments for money damages in federal court. Wynn
v. Southward,251 F.3d 588, 592 (7th Cir. 2001).
Moreover, “[t]his bar remains in effect when State
officials are sued for damages in their official capacity . .
. [as] a judgment against a public servant in his official
capacity imposes liability on the entity that he
represents.” Kentucky v. Graham, 473 U.S. 159,
169 (1985) (quotations and citations omitted). Likewise, any
claim seeking injunctive relief would be futile. A plaintiff
bringing a claim under § 1983 has standing to seek
injunctive relief “only if he has a personal stake in
the outcome of the litigation.” Stewart v.
McGinnis, 5 F.3d 1031, 1037 (7th Cir. 1993) (quoting