United States District Court, S.D. Indiana, Indianapolis Division
DAVID E. PROFFITT, Plaintiff,
CHARITY, Jennings County Jail Officer, FOX, Jennings County Jail Officer, SAM BEARD, Jennings County Jail Commander, Defendants.
ENTRY DENYING DEFENDANTS' MOTION TO RECONSIDER
AND SETTING AMENDED PRETRIAL SCHEDULE
William T. Lawrence, Judge
Motion to Reconsider
Entry of February 12, 2018, the Court denied the
defendants' motion for summary judgment. Dkt. No. 38. The
defendants, Officers Fox and Charity and Commander Beard,
filed a motion to reconsider the Court's ruling. The
plaintiff has responded and the defendants replied. The
motion to reconsider is now ripe for resolution.
defendants based their motion for summary judgment, in large
part, on the defense of timeliness. They failed to address
the prison mailbox rule, however, which was the basis on
which the Court denied the defendants' motion for summary
judgment. The defendants now argue that the Court was
premature in its reliance on the prison mailbox rule because
the plaintiff had not submitted a sworn statement attesting
to the date he placed his lawsuit in the prison mail system.
In his response to the motion to reconsider, the plaintiff
has declared under penalty of perjury that he placed his
civil complaint in the prison mailbox on December 13, 2016.
This renders the defendants' argument about strict
compliance with the mailbox rule moot.
summary judgement record shows that the plaintiff left the
Jail at 7:12 a.m. on December 15, 2014. As noted in the
Court's ruling on motion for summary judgment, the
defendants argued that all allegations relating to conduct on
or before December 15, 2014, were untimely. Dkt. No. 38. This
was too broad of an interpretation of the timeliness problem.
The Court also noted in its decision, “[s]ome if not
most of the plaintiff's claims may be untimely, but not
those that arose between December 13, 2014, and December 15,
plaintiff alleges in his amended complaint that Officers Fox
and Charity “continually kicked my cell door”
calling him a “piece of shit rapist” and
threatening that “if you don't plead guilty to your
(crime), your [sic] gonna have an accident, ” and
“you're lucky you were found guilty or you
wouldn't have made it out of my jail.” Dkt. No. 9.
The plaintiff alleges that the kicking, name calling, and
threatening deprived him of sleep “for several
days.” Id. The plaintiff further alleges that
Officers Fox and Charity subjected him to excessive force
when they threw the plaintiff in a holding cell injuring him.
The excessive force claim against Captain Beard is that he
slammed the plaintiff's head into a police car window.
The plaintiff argues that the Court should construe his
claims as asserting “continual abuse” and thereby
include incidents that occurred before December 13, 2014.
doctrine of continuing violation governs the accrual of a
claim. Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.
2001). “A violation is called ‘continuing, '
signifying that a plaintiff can reach back to its beginning
even if that beginning lies outside the statutory limitations
period, when it would be unreasonable to require or even
permit him to sue separately over every incident of the
defendant's unlawful conduct.” Id. This
occurs when the injuries about which the plaintiff is
complaining “are the consequence of a numerous and
continuous series of events.” Id. The
continuing violation doctrine may apply “to repeated
conduct occur[ing] over a series of days or perhaps years in
light of the fact that a single act of harassment may not be
actionable on its own.” Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013) (internal quotation omitted).
excessive force claims are not subject to the continuing
violation doctrine. The alleged force was not applied over a
series of days or longer. Rather, the plaintiff being thrown
in the cell and having his head slammed against a car window
are two separate, suable incidents.
basis of the record as it stands, the Court cannot determine
whether the plaintiff's broad claims of kicking his cell
door, name calling, and threats over the course of several
days 1) rise to the level of a constitutional violation,
and/or 2) can be treated as “continuing
violations.” This is because there is no evidence of
what each defendant did when.
plaintiff also alleges that Captain Beard threw away his
mail. The interference with the receipt of an inmate's
mail may violate the First Amendment unless it is
“reasonably related to legitimate penological
interests.” Rowe v. Shake, 196 F.3d 778, 782
(7th Cir. 1999) (internal quotation omitted). The plaintiff
further alleges that Captain Beard did not allow him to have
any visitors. The Seventh Circuit has recently held that
“prison officials may violate the Constitution by
permanently or arbitrarily denying an inmate visits with
family members” if the denial is not reasonably related
to legitimate penological interests. Easterling v.
Thurmer, 880 F.3d 319, 322-23 (7th Cir. 2018). Captain
Beard's arguments on summary judgment with respect to
these claims only related to December 15, 2014. He has not
presented evidence sufficient to demonstrate that he is
entitled to summary judgment on either of these claims.
defendants' motion to reconsider, Dkt. No. 41, is
denied because they have not demonstrated
that they are entitled to partial summary judgment on the
Amended Pretrial Schedule
action shall proceed in accordance with this amended
No. later than June 1, 2018 - Each party must give
the other parties a list (with addresses and telephone
numbers) of every witness who has knowledge that could help
prove that party's claims or defenses. For each witness
the party lists, there should be a brief ...