Asher B. Hill v. Frank Littlejohn, Robbie Marshall, Christopher Nicholson, Linda VanNatta, Adam Davis, and Wade Collins (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 25, 2018
• Docket: 49A02-1711-CT-2557
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 25 2018, 9:18 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEES Asher B. Hill Curtis T. Hill, Jr. Wabash Valley Correctional Facility Attorney General Carlisle, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Asher B. Hill, July 25, 2018 Appellant-Plaintiff, Court of Appeals Case No. 49A02-1711-CT-2557 v. Appeal from the Marion Superior Court Frank Littlejohn, Robbie The Honorable Patrick Dietrick, Marshall, Christopher Judge Nicholson, Linda VanNatta, Trial Court Cause No. Adam Davis, and Wade Collins, 49D12-1510-CT-32839 Appellees-Defendants

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 1 of 12 Case Summary [1] Asher B. Hill, an inmate at Wabash Valley Correctional Facility (“Wabash

Valley”), filed a complaint and supplemental complaint against Indiana

Department of Correction (“DOC”) employees Frank Littlejohn, Robbie

Marshall, Christopher Nicholson, Linda VanNatta, Adam Davis, and Wade

Collins (collectively “Defendants”), claiming that they violated his Eighth

Amendment right against cruel and unusual punishment as well as his due

process rights. Defendants filed a motion for summary judgment, which the

trial court granted. Hill now appeals, claiming that the trial court erred in

granting summary judgment on his Eighth Amendment claims arising from a

February 2014 incident. Finding no error, we affirm.

Facts and Procedural History [2] The facts most favorable to Hill as the party opposing summary judgment are as

follows. Hill is housed in Wabash Valley’s secured control unit, which consists

of different ranges. Inmates are housed individually and are not permitted to go

into each other’s cells. The cell doors can only be opened remotely by

correctional officers who work in the control pod. When the inmates are

outside their cells, they are generally handcuffed and escorted by correctional

officers. Each range has an inmate range worker who is responsible for

cleaning the common areas and cells.

[3] “Sometime in February 2014[,]” Hill was involved in a verbal altercation with

fellow inmate Christopher Bailey, who was a range worker on Hill’s range.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 2 of 12 Appellees’ App. Vol. 2 at 127. Bailey told Hill, “I will have a [correctional

officer] roll your door and beat your punk ass, you check in mother f***er.” Id.

Hill and Bailey had no previous history of animosity. “Shortly thereafter” –

whether a matter of hours or days is unclear from the record before us – at

approximately 8:00 p.m. on February 14, Hill was asleep in his cell when he

heard the cell door being opened, which allowed Bailey to enter his cell. Id.1

According to Hill, “I jumped up and I ran into [Bailey]. We fought inside my

cell. He got the best of me because I was half asleep.” Id. Bailey left Hill’s cell,

and Hill could hear him bragging to other inmates about how he beat up Hill.

Hill “grabbed a broomstick and went after Bailey.” Id. at 128. Bailey grabbed

another broomstick. They “swung the sticks at each other but didn’t make any

contact.” Id. Hill and Bailey were secured by correctional officers and ordered

back to their cells. The entire incident lasted ten to fifteen minutes. Hill

suffered cuts inside his lips and on his hands, as well as bruises on his arms and

legs as a result of the fight in his cell. He did not think that his injuries were

“life threatening,” but he “asked to see the nurse because [he] wanted it

documented medically[.]” Id. at 134. “[T]he nurse never came.” Id. “The

next day both [his] eyes had dark marks underneath them.” Id. at 128.

[4] On February 18, DOC Internal Affairs Investigator Randall Rasner was

assigned to investigate the incident. In his report, which was completed on

1 Defendants allege that a prison surveillance video contradicts Hill’s claim that Bailey entered his cell. Hill alleges that Defendants deleted the portion of the video that shows Bailey entering Hill’s cell. Because Defendants concede for purposes of summary judgment that Bailey entered Hill’s cell, we need not address the matter further.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 3 of 12 February 21, Rasner stated that Correctional Officer Dustin Robbins was

operating the control panel in the control pod on February 14 and had received

“very little training” in that regard. Id. at 203. Rasner interviewed Robbins and

zone supervisor Lieutenant Christopher Nicholson. According to Rasner,

Robbins “openly admitted that he did not scrutinize his actions closely enough

and let keeping track of the officer (A[dam] Davis), as he was doing his rounds,

to be an added distraction.” Id. Robbins also “stated that he opened the door

to [the cell] believing that [Bailey] was going to be cleaning [it] and that it was

an empty cell, when in actuality it was occupied by Hill ….” Id. Rasner and

Nicholson “were in agreement that this incident happened as a result of human

error and that no malicious intent was involved.” Id. at 204.

[5] On March 5, Hill filed a grievance with Wabash Valley officials regarding his

altercation with Bailey. He asserted that Davis opened his cell door so Bailey

could attack him and that “this is not an isolated incident.” Appellant’s App.

Vol. 2 at 30. Hill stated that on October 22, 2011, Officer Keller opened his cell

door; when Hill went to the door, Officer Everhart “was standing there with

handcuffs around his hands like brass knuckles challenging [him] to a fight.”

Id. Hill asked for the matter to be investigated and for “appropriate disciplinary

action” to be taken against “all officers involve[d]” because he “fear[ed] for

[his] life and safety.” Id.

[6] On March 26, a response was issued to Hill’s grievance that reads in relevant

part as follows:

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 4 of 12 Internal Affairs Supervisor R[obbie] Marshall’s Statement - This matter was fully investigated by the Office of Internal Affairs. The offender will not be provided the outcome of the investigation.

Lieutenant C[hristopher] Nicholson’s Statement - I investigated the complaint of Asher Hill. The complaint was over his door being opened while the range runner was on the range, both offenders got into a fight. This incident was investigated by Internal Affairs.

Assistant Superintendent F[rank] Littlejohn’s Statement via Phone - The incident was investigated and appropriate actions were taken.

G.S. Finding - Per the statements noted above the incident was investigated and appropriate action was taken.

GRIEVANCE FOUNDED/ISSUE ADDRESSED

Id. at 31. On April 4, Hill filed a grievance appeal in which he essentially

reasserted the allegations in his grievance. On September 29, DOC Grievance

Manager Leslie VanNatta issued the following response: “Your appeal has

been reviewed and appropriate actions were taken. Grievance appeal denied.”

Appellees’ App. Vol. 2 at 63.

[7] In October 2015, Hill filed a complaint against Defendants in their official and

individual capacities under 42 U.S.C. § 1983 (“Section 1983”), alleging that

they “violated the Eighth Amendment by their deliberate indifference to [his]

safety and acted clearly outside the scope of their employment when they

criminally and maliciously exposed [him] to violence at the hands of another

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 5 of 12 prisoner” in February 2014. 2 Appellees’ App. Vol. 2 at 42. He further alleged

that prior to that incident he had notified Littlejohn, Marshall, and Nicholson

“in writing about their subordinate officers breaching security by rolling his cell

door and challenging him to a fist fight, but apparently [they] did nothing to

rectify the problem” because Davis “breached security again when he rolled

[Hill’s] cell door to allow him to be attack[ed] by another prisoner and thereby

forcing him into a physical confrontation.” Id. at 47. Hill also alleged that

Nicholson and Correctional Officer Wade Collins “criminally and maliciously

destroyed” his television. Id. at 49. Hill requested $25,000 in compensatory

damages and $10,000 in punitive damages for his physical injuries and $160 in

compensatory damages for his television.

[8] In March 2016, Hill filed a supplemental complaint alleging that in January

2016 two other correctional officers had improperly “open[ed] the shower door

while [he] was taking a shower in [an] attempt to provoke [him] into a fight.”

Id. at 87.3 Hill further alleged that “the defendants [had] done absolutely

nothing to rectify the problem with their subordinate officers breaching security

2 Section 1983 states in pertinent part, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State …, subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …. 3 Hill filed a grievance regarding this incident, which was denied. There is no indication that he filed a grievance appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 6 of 12 ….” Id. at 88. Hill did not specifically allege any Eighth Amendment

violations or request any additional relief for this incident.

[9] Hill was deposed in November 2016. In March 2017, Defendants filed a

motion for summary judgment as to “all claims presented in the complaint and

supplemental complaint.” Id. at 8. Among other things, Defendants asserted

that Robbins, not Davis, opened the cell door before Hill’s fight with Bailey,

and therefore Davis was not personally involved in the alleged Eighth

Amendment violation. Hill filed a response to Defendants’ motion.

Defendants were granted leave to file a reply, in support of which they

designated an affidavit from Robbins stating that he accidentally opened the

door to Hill’s cell while Davis was patrolling the range. Hill was granted leave

to file a surreply, in support of which he designated an affidavit from a fellow

inmate stating that he saw Davis “working in the control pod when the

altercation between Hill and Bailey occurred.” Appellant’s App. Vol. 2 at 28.

[10] In September 2017, the trial court issued an order that reads in relevant part as

follows:

Regarding [Hill’s] Eighth Amendment claim under 42 U.S.C. Section 1983 stemming from an altercation that occurred on February 14, 2014 and a shower cell incident that occurred in 2016, the Court FINDS that two basic requisites for liability are absent from [Hill’s] claim. First, Defendants in their official capacities are not “person[s]” subject to suit under Section 1983. Second, even if the Defendants were named in their individual capacities, they lack the requisite personal involvement for a successful Eighth Amendment claim.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 7 of 12 Regarding [Hill’s] Procedural Due Process claim under the Fourteenth Amendment for destruction of property the Court FINDS that the Defendants named in this claim were not personally involved, and even if they were the claim would fail as it falls within the Supreme Court’s holding in Hudson v. Palmer, 468 U.S. 517, 533 (1984). Not only was [sic] there meaningful post-deprivation remedies available to [Hill], but the State voluntarily provided [Hill] a different television after [Hill] complained about the original television being broken. This replacement was a suitable compensation for the purposes of Due Process; therefore, there was no Due Process violation.

IT IS THERFORE ORDERED, ADJUDGED and DECREED that judgment be entered in favor of Defendants Frank Littlejohn, Robbie Marshall, Christopher Nicholson, Linda Van[N]atta, Adam Davis, and Wade Collins.

Id. at 14-15.

[11] Hill now appeals the trial court’s ruling on his Eighth Amendment claims

arising from the February 2014 incident; he does not challenge the trial court’s

determination that Defendants are not amenable to suit in their official

capacities. He does not specifically challenge the trial court’s ruling on his

Eighth Amendment claims, if any, arising from the January 2016 incident, so

we summarily affirm as to those claims.4 Hill also does not challenge the trial

court’s ruling on his due process claims, so we summarily affirm as to those

claims, thereby removing Collins from the equation in this appeal.

4 The arguments raised in Hill’s initial brief relate solely to the February 2014 incident. See Appellant’s Br. at 14 (“There is factual dispute about whether defendant Davis was working in the control pod February 14, 2014.”) and 19 (“There is factual dispute as to whether defendants Littlejohn, Marshall, Nicholson and VanNatta are liable for their subordinate opening Hill’s cell door to facilitate the attack on him.”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 8 of 12 Discussion and Decision

Section 1 – The trial court did not err in granting Defendants’ summary judgment motion. [12] Hill contends that the trial court erred in granting Defendants’ summary

judgment motion. He has litigated this proceeding pro se, and we hold him “to

the same performance standards as practicing attorneys.” Lee v. State, 91

N.E.3d 978, 990 (Ind. Ct. App. 2017). Our standard of review is well settled:

When reviewing the grant or denial of summary judgment, this court applies the same standard as the trial court. Specifically, we must determine whether there is a genuine issue of material fact requiring a trial and whether the moving party is entitled to judgment as a matter of law. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. A party seeking summary judgment must make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. On appeal, we will assess the trial court’s decision to ensure that the parties were not improperly denied their day in court. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where undisputed material facts are capable of supporting conflicting inferences on such an issue.

Handy v. P.C. Bldg. Materials, Inc., 22 N.E.3d 603, 605-06 (Ind. Ct. App. 2014)

(quoting Hassan v. Begley, 836 N.E.2d 303, 306-07 (Ind. Ct. App. 2005)), trans.

denied (2015).

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 9 of 12 [13] “A trial court’s order granting or denying a motion for summary judgment is

cloaked with a presumption of validity.” McDonald v. Lattire, 844 N.E.2d 206,

211 (Ind. Ct. App. 2006). “A party appealing from an order granting summary

judgment has the burden of persuading us that the decision was erroneous.” Id.

“The trial court’s findings and conclusions are not binding upon this court, but

do facilitate appellate review and offer insight into the trial court’s rationale for

its decision.” Id. Although we are limited to reviewing only the evidence

designated to the trial court, we are not constrained to the claims and

arguments presented below, and “we may affirm a grant of summary judgment

on any theory supported by the designated evidence.” Lagro Twp. v. Bitzer, 999

N.E.2d 902, 904 (Ind. Ct. App. 2013).

[14] The Eighth Amendment to the United States Constitution prohibits the

infliction of “cruel and unusual punishment.” The Constitution does not

mandate comfortable prisons, but it does not permit inhumane ones, and “‘the

treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment[.]’” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31

(1993)). The Constitution imposes duties on prison officials, “who must

provide humane conditions of confinement,” including “‘tak[ing] reasonable

measures to guarantee the safety of the inmates[.]’” Id. (quoting Hudson v.

Palmer, 468 U.S. 517, 526-27 (1984)). In particular, prison officials have a duty

to protect prisoners from violence at the hands of fellow prisoners. Id. at 833.

“Being violently assaulted in prison is simply not ‘part of the penalty that

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 10 of 12 criminal offenders pay for their offenses against society.’” Id. at 834 (quoting

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

[15] “It is not, however, every injury suffered by one prisoner at the hands of

another that translates into constitutional liability for prison officials responsible

for the victim's safety.” Id. “[I]nmates are entitled to relief only when their

injury is objectively serious and the prison official acted with deliberate

indifference to the inmate’s safety.” Fisher v. Lovejoy, 414 F.3d 659, 662 (7th

Cir. 2005) (citing, inter alia, Farmer, 511 U.S. at 834).5 Here, as Defendants

point out, “Hill suffered what amounted to no more than minor bumps and

bruises” during his altercation with Bailey, which Hill initiated by jumping up

and running into Bailey. Appellees’ Br. at 26-27. Hill requested a nurse

because he wanted to document his injuries, but his own deposition testimony

establishes that those injuries were not objectively serious. See Appellees’ App.

Vol. 2 at 134 (Hill’s deposition) (“I didn’t think my, you know, busted lip and

[…] little bruises was like life threatening, I didn’t feel like, you know, I was

going to die or anything […].”). Hill cites Brown v. Budz, 398 F.3d 904 (7th Cir.

2005), to support his assertion that he was “severely beaten[,]” Appellant’s

Reply Br. at 18, but that opinion offers no details regarding the plaintiff’s

injuries beyond saying that another detention facility resident “attacked and

severely beat [him] several times in succession, causing [him] to suffer physical

5 In his complaint and supplemental complaint, Hill did not request injunctive relief to protect himself against harm from future door-rolling incidents.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 11 of 12 injuries.” Brown, 398 F.3d at 907-08. Because Hill has failed to demonstrate a

genuine issue of material fact regarding whether his injuries were objectively

serious, we affirm the trial court’s entry of summary judgment for Defendants. 6

[16] Affirmed.

Bailey, J., and Brown, J., concur.

6 Consequently, we need not address whether genuine issues of material fact exist regarding whether Davis was the officer who opened Hill’s cell door, whether Defendants were deliberately indifferent to Hill’s safety, or whether Defendants are entitled to qualified immunity, among other things.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CT-2557 | July 25, 2018 Page 12 of 12