United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
PHILIP
P. SIMON, JUDGE
Kedrice
Dorsey, a prisoner without a lawyer, filed a motion to
reconsider the screening order. ECF 13. In that order, Dorsey
was allowed to proceed on an Equal Protection claim against
Brad Williams and Michael Arthur for racial discrimination in
connection with his employment with PEN Products, an Eighth
Amendment claim against R. Crowe for an inappropriate pat
down search, and a First Amendment retaliation claim against
Williams for employment termination and filing false reports.
ECF 8. He was further allowed to proceed on a claim for
injunctive relief against Warden Hyatte in his official
capacity.
In the
instant motion, Dorsey argues that he should have been
allowed to proceed on a “failure to intervene”
claim against Roark for the alleged employment discrimination
and against Warden Hyatte for the alleged employment
discrimination, inappropriate pat down search, and
retaliation. In the screening order, I dismissed this claim
because the allegations did not describe a substantial risk
of serious harm to his health and safety. For purposes of
constitutional law, a failure to intervene claim is most
commonly asserted in the context of an excessive force claim,
see, e.g., Harper v. Albert, 400 F.3d 1052, 1064
(7th Cir. 2005); Fillmore v. Page, 358 F.3d 496,
505-06 (7th Cir. 2004), and I construed this term
accordingly.
It now
appears that Dorsey is asserting that Warden Hyatte and Roark
were personally involved in the constitutional violations
because he informed them of his complaints, but they refused
to address them.
Of course, the defendant prison official cannot be personally
liable under a theory of respondeat superior. However, an
official satisfies the personal responsibility requirement of
section 1983 if the conduct causing the constitutional
deprivation occurs at [his] direction or with his knowledge
and consent. That is, he must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye.
In short, some causal connection or affirmative link between
the action complained about and the official sued is
necessary for § 1983 recovery.
Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996)
(quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th
Cir. 1995)). In the complaint, Dorsey alleges that he
regularly informed Roark that Williams and Arthur
discriminated against him on the basis of race but that she
did nothing to prevent it. Therefore, he may proceed against
Roark on the Equal Protection Claim. Dorsey further alleges
that he sent letters to Warden Hyatte regarding his claims
but that he never addressed them. While it is unclear whether
Warden Hyatte received this correspondence, these allegations
are sufficient to allow Dorsey to proceed against him on a
claim for damages at this stage of the proceedings. See
Id. (“[A]n inmate's letters to prison
administrators may establish a basis for § 1983
liability.”).
Dorsey
also argues that he should have been allowed to proceed
against Warden Hyatte and Sandy Roark on a claim under Title
VII of the Civil Rights Act of 1964. To proceed on Title VII
claim, a plaintiff must: (1) file a timely charge with the
Equal Employment Opportunity Commission or a comparable State
agency; and (2) must wait until that agency issues her or him
a right-to-sue letter. 42 U.S.C. § 2000e-5. Doe v.
Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006).
Notably, in the complaint, Dorsey meticulously describes and
documents his efforts to obtain relief through the grievance
process, to initiate an investigation of his complaint
against R. Crowe, to change his classification, and to
challenge the finding of guilt in a disciplinary proceeding.
However, the complaint lacks any suggestion that Dorsey filed
a charge of discrimination with the EEOC or the Indiana Civil
Rights Commission or that he received a right-to-sue letter
from either agency. Therefore, the motion to reconsider is
denied with respect to allowing Dorsey to proceed on a Title
VII claim.
Dorsey
further argues that he should be allowed to proceed on a
breach of contract claim in connection with his employment.
Under Indiana law, “to recover for a breach of
contract, a plaintiff must prove that: (1) a contract
existed, (2) the defendant breached the contract, and (3) the
plaintiff suffered damage as a result of the defendant's
breach.” Collins v. McKinney, 871 N.E.2d 363,
370 (Ind.Ct.App. 2007). “If there is no definite or
ascertainable term of employment, then the employment is
at-will, and is presumptively terminable at any time, with or
without cause, by either party.” Orr v. Westminster
Vill. N., Inc., 689 N.E.2d 712, 717 (Ind. 1997).
“[I]n Indiana, the presumption of at-will employment is
strong.” Id. Significantly, there is nothing
in the complaint to suggest that Dorsey was not an at-will
employee or that Dorsey had entered into a contract for a
guaranteed term of employment. Therefore, Dorsey may not
proceed on a breach of contract claim.
Finally,
Dorsey argues that he should be allowed to proceed against
PEN Products because it only recently became a State agency.
In the screening order, PEN Products was dismissed because
the Eleventh Amendment bars suits against a State agency.
Dorsey's statement is simply not true. While PEN Products
was recently renamed Indiana Correctional Industries, this
entity has been a State agency since 1917. Indiana Department
of Correction, Indiana Correctional Industries Mission and
History, available at
https://www.in.gov/idoc/indianacorrectionalindustries/2566.htm.
For
these reasons, the Court:
(1)
GRANTS IN PART the motion to reconsider (ECF 13);
(2)
DIRECTS the clerk to re-add Sandy Roark as a defendant;
(3)
GRANTS Kedrice Dorsey leave to proceed on a claim for money
damages against Brad Williams, Michael Arthur, Sandy Roark,
and William Hyatte under the Equal Protection Clause for
racial harassment during the course of his employment with
PEN Products;
(4)
GRANTS Kedrice Dorsey leave to proceed on an Eighth Amendment
claim against R. Crowe and William Hyatte for money damages
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