United States District Court, N.D. Indiana, South Bend Division
KEVIN S. TURNER, Plaintiff,
INDIANA DEPARTMENT OF CORRECTIONS, et al., Defendants.
OPINION AND ORDER
L. Miller, Jr. JUDGE
S. Turner, a prisoner without a lawyer, filed a complaint.
This court must review the complaint and dismiss it if the
action is frivolous or malicious, fails to state a claim, or
seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915A. “A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers . . .” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
Turner's complaint alleges that, during his time at the
Westville Correctional Facility, he maintained a particular
hairstyle as an expression of his religious beliefs. On
October 23, 2017, Sergeant Reed told him that he had to
change his hairstyle to keep his job as a cleaner in the
administration building. Later that day, Captain Lewis also
told him that he needed to change his hairstyle to keep his
job. When Mr. Turner asserted his religious beliefs, Captain
Lewis told him that his orders came from Warden Sevier and
Major Cornett. Mr. Turner changed his hairstyle that evening.
Despite these efforts to comply, on October 24, Lieutenant
Halloran told Mr. Turner that Captain Lewis had fired him
from his cleaning job. Mr. Turner filed a grievance.
October 28, Officer Saldana took Mr. Turner to Lieutenant
Halloran's office. Mr. Turner asked for a transfer, and
Lieutenant Halloran said he could make that happen. Officer
Saldana fabricated a conduct report stating that Mr. Turner
had threatened Lieutenant Halloran with violence, and shortly
thereafter, he was transferred from the Westville
Correctional Facility to the Westville Control Unit. After a
disciplinary hearing, Mr. Turner was sanctioned with a loss
of one hundred eighty days of earned credit time. He further
lost the chance to reduce his sentence by 183 days through a
program maintained by the United States Department of Labor.
Turner asserts Section 1983 claims against the defendants for
requiring him to cut his hair to retain his job and for
terminating him when he informed them of his religious
beliefs. Prisoners have a right to exercise their
religion under the Free Exercise Clause of the First
Amendment. Vinning-El v. Evans, 657 F.3d 591,
592-593 (7th Cir. 2011). Nevertheless, correctional officials
may restrict the exercise of religion if the restrictions are
reasonably related to legitimate penological objectives,
which include safety, security, and financial concerns.
Turner v. Safley, 482 U.S. 78, 89-91 (1987). Based
on these job-related allegations, Mr. Turner states a
plausible claim under the Free Exercise Clause against
Sergeant Reed, Captain Lewis, Lieutenant Halloran, Warden
Sevier, and Major Cornett.
Turner also asserts State law claims of negligence and
negligent infliction of emotional distress against the
defendants based on the job-related allegations. Under
Indiana law, “[T]o prevail on a claim of negligence the
plaintiff must show: (1) duty owed to plaintiff by defendant;
(2) breach of duty by allowing conduct to fall below the
applicable standard of care; and (3) compensable injury
proximately caused by defendant's breach of duty.”
Williams v. Cingular Wireless, 809 N.E.2d 473, 476
(Ind.Ct.App. 2004). Though Indiana law recognizes claims of
negligent infliction of emotion distress, “[e]ach of
the rules of recovery for negligent infliction of emotional
distress requires impact upon or the threat of injury to a
person-either the plaintiff herself or her loved one.”
Ketchmark v. N. Indiana Pub. Serv. Co., 818 N.E.2d
522, 524 (Ind.Ct.App. 2004). Mr. Turner can't proceed on
claim of negligence because the allegations related to the
claim of negligence are vague. Mr. Turner asserts that the
defendants owed him a number of duties, but he doesn't
explain how each defendant violated them. Further, he
can't proceed on the claim of negligent infliction of
emotional distress because his allegations don't involve
physical impact upon or the threat of injury to a person. The
State law claims are dismissed.
Turner asserts claims against the defendants for conspiring
to fabricate a conduct report and seeks injunctive relief for
the restoration of his earned credit time. “[A] state
prisoner's claim for damages is not cognizable under 42
U.S.C. § 1983 if a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence, unless the prisoner can demonstrate that the
conviction or sentence has previously been
invalidated.” Edwards v. Balisok, 520 U.S.
641, 643 (1997). This rule also extends to claims challenging
the loss of good time credit in prison disciplinary actions.
Id. at 648. Mr. Turner indicates that he was found
guilty of threatening an officer but doesn't allege that
the finding of guilt has since been invalidated. Because
finding that the underlying conduct report was fabricated
would inherently undermine the validity of the disciplinary
finding of guilt, he can't proceed on these allegations
in this case or against Officer Saldana. If Mr. Turner seeks
to challenge his disciplinary proceedings, he may file a
habeas petition under 28 U.S.C. § 2254.
Turner also names the Indiana Department of Correction and
Commissioner Carter as defendants. The Constitution's
Eleventh Amendment provides: “The Judicial Power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” The Eleventh Amendment
bars “a suit by a citizen against the citizen's own
State in Federal Court.” Johns v. Stewart, 57
F.3d 1544, 1552 (7th Cir. 1995). The Eleventh Amendment's
jurisdictional bar extends to state agencies, such as the
Department of Correction, as well as to the State itself.
See Kashani v. Purdue University, 813 F.2d 843 (7th
Cir. 1987). A State may elect to waive its Eleventh Amendment
immunity, but the State of Indiana hant done that.
Meadows v. State of Indiana, 854 F.2d 1068, 1069
(7th Cir. 1988). Further, “[Section] 1983 lawsuits
against individuals require personal involvement in the
alleged constitutional deprivation to support a viable
claim.” Palmer v. Marion Cty., 327 F.3d 588,
594 (7th Cir. 2003). Mr. Turner doesn't allege that
Commissioner Carter is personally involved with his claims.
He can't proceed against the Indiana Department of
Correction or Commissioner Carter, and these defendants are
final matter, the court observes Mr. Turner has accrued three
strikes under the Prison Litigation Reform Act, and the
complaint contains no indication that he is in imminent
danger of physical harm. This means that Mr. Turner can't
proceed in forma pauperis in this case and that the court
won't serve any defendants for free pursuant to 28 U.S.C.
§ 1915(d). Rather, he is responsible for serving the
defendants with the complaint as required by Federal Rule of
Civil Procedure 4. If he would like to have the United States
Marshals Service serve the defendants by certified mail, he
must send the summons with sufficient copies of the
complaint, properly completed USM-285 forms, and a check for
the appropriate amount ($24.00 for each unserved defendant)
to: United States Marshals Service, Room 233, 204 South Main
Street, South Bend, IN 46601.
these reasons, the court:
(1) GRANTS Kevin S. Turner leave to proceed on a First
Amendment claim against Sergeant Reed, Captain Lewis,
Lieutenant Halloran, Warden Sevier, and Major Cornett for
money damages for violating his right to exercise his
religion by requiring him to change his hairstyle for his job
and by firing him;
(2) DISMISSES the Indiana Department of Correction,
Commissioner Carter, and Officer Saldana;
(3) DISMISSES all other claims;
(4) DIRECTS the clerk to sign and seal the summons and send
them to Kevin S. Turner with two blank USM-285 forms and a
copy of the complaint (ECF 9); and (5) ORDERS, pursuant to 42
U.S.C. § 1997e(g)(2), that the defendants respond, as
provided for in the Federal Rules of Civil Procedure and N.D.
Ind. L.R. 10.1, only to the claims ...