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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DICISION

ALAN KRESS, BILLY FORD, ERIC

)

STAGGS, TIMOTHY-PATRICK TREACY, )

RANDY CARR, on their own behalf and on )

behalf of a class of those similarly situated,

)

)

)

Plaintiffs,

)

vs.

))1

)

CCA OF TENNESSEE, LLC d/b/a

)

CORRECTIONS CORPORATION OF

)

AMERICA, and MARION COUNTY SHERIFF)

FRANK ANDERSON,

)

)

Defendants.

)

:08

-cv- 0 431 -DFH -WTL

COMPLAINT FOR DECLARATORY AND INUNCTIVE RELIEF

I. INTRODUCTION

1. This is a class action complaint for declaratory and injunctive relief challenging as

unconstitutional and illegal the following: 1) the medical treatment and non-treatment of inmates

at the Jail #2 facility managed by Defendant CCA of Tennessee, LLC d/b/a Corrections

Corporation of America (hereinafter "CCA"; 2) the unsafe and inhumane conditions of the Jail #2

facility; and 3) CCA's refusal to process numerous internal inmate grievances at Jail #2 or provide

written responses to those grievances. Sheriff Frank: Anderson is named as a Defendant in this

matter for failing to oversee CCA's compliance with the contract for privatized jail services and

failing to ensure those services were provided in accordance with federal and state law.

II. JURISDICTION, VENUE AND CAUSE OF ACTION

2. This Court has jurisdiction of this cause pursuantto 28 U.S.C. §§ 1331 and 1343.

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3. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391. 4. Declaratory relief is authorized by 28 U.S.C. §§2201 and 2202 and by Rule 57 of the Federal Rules of Civil Procedure. 5. This action is brought, pursuant to 42 U.S.C. §1983 to redress the deprivation, under color of state law, ofrights secured by the laws and constitution ofthe United States ofAmerica. 6. This court has jurisdiction of the supplemental state law claims pursuant to 28 U.S.C. §1367.
II. PARTIES 7. Plaintiff Alan Kress is an inmate confined in the Jail #2 facility, awaiting trial. 8. Plaintiff Billy Ford is an inmate confined in the Jail #2 facility, awaiting triaL 10. Plaintiff Timothy-Patrick Treacy is an inmate confined in the Jail #2 facility, awaiting trial. II. Plaintiff Randy Carr is an inmate confined in the Jail #2 facility, awaiting trial. 12. Plaintiff Eric Staggs is an inmate confined in the Jail #2 facility, awaiting trial. 13. Defendant CCA is a limited liability company which has its home office in Nashville, Tennessee. 14. Defendant Sheriff Frank Anderson is the elected Sheriffof Marion County.
III. CLASS ACTION ALLEGATIONS 15. This action is brought by the Plaintiffs on their own behalf and on behalf of a class of those similarly-situated pursuant to Rule 23(a) and (b)(2) ofthe Federal Rules ofCivil Procedure. 16. The class is defined as:
any and all persons currently confined, or who will be in the future confined, in the Jail #2 facility. 17. All requirements of Rule 23(a) are met in this cause in that:
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a. The class is so numerous that joinder of all members is impractical. Jail #2 has approximately 992 beds and is normally near capacity.
b. There are questions of law or fact common to the class: whether the medical treatment and non-treatment of inmates, the conditions of the Jail #2 facility, and CCA's refusal to process inmate complaints violate the United States Constitution and federal and state law. In addition, Sheriff Anderson's failure to monitor the contract and ensure CCA complies with the law in providing jail services is likewise a question oflaw and/or fact common to the class.
c. The claims of the representative Plaintiffs are typical of those of the class.
d. The representative parties will fairly and adequately protect the interests of the class.
18. Further, the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure are
met in this cause in that the Defendants have acted, and refused to act, on grounds generally
applicable to the class, thereby making appropriate final injunctive and declaratory relief with
respect to the class as a whole.
IV. FACTS A. GENERAL BACKGROUND
19. Plaintiffs are all inmates at the Jail #2 facility.
20. Defendant CCA manages prison and jail facilities in various states, including Indiana.
In particular to this case, CCA contracts with the Marion County Sheriff to operate Jail #2, which
is located at 730 E. Washington Street, Indianapolis, Indiana 46202.
21. Defendant Frank Anderson, elected Sheriff of Marion County, is responsible, pursuant
to IC 36-2-13-5 and other Indiana statutes and regulations, for maintaining jail facilities
throughout Marion County, including overseeing the privatized Jail #2 facility run by CCA at the
Jail #2 facility.

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22. Defendant Sheriff Anderson appoints a "contract monitor" who is responsible for inspecting the facility and its operations, as well as ensuring CCA provides jail services in accordance with the terms of the contract and the law.
B. FAILURE TO PROVIDE PROPER MEDICAL CARE AND TREATMENT TO INMATES
23. CCA is responsible providing medical care and treatment to the inmates in the Jail #2 facility.
24. Sheriff Anderson is responsible for ensuring that CCA provides the inmates of Jail #2 with proper and adequate medical care and treatment.
25. CCA failed to provide proper and adequate medical care and treatment to the Plaintiffs and the class they represent.
26. Examples of improper and inadequate medical treatment include, but are not limited to, CCA failing to provide inmates with medication, providing medication late or doubling up on medication by providing back-to-back doses, providing inmates with the wrong medication, providing inmates with expired and/or other inmate's medication, and failing to report medication errors involving inmates as required by Indiana law.
27. Plaintiffs and the class they represent have suffered health problems as a result of not getting their medication. Some inmates have fainted, some have had seizures, while others have even died.
28. Plaintiffs and the class they represent filed complaints/grievances with the Jail #2 regarding the improper and inadequate medical treatment they received.
29. Defendant CCA and Defendant Sheriff Anderson have been on notice for some time regarding the improper and inadequate medical treatment provided to inmates at the Jail #2 facility.
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30. That, in fact, a lawsuit filed by eight nurses, fonner employees of CCA, is pending before this court as Cause No. I :08-CV-254-SFB-JMS. In the Complaint, the Nurses detail the same failure of CCA to provide inmates with adequate medical care and treatment that is detailed in this Complaint. Several other lawsuits are pending against CCA alleging the failure to provide proper medical care at the Jail #2 facility. In addition, this Court in 2003 addressed the failure to provide proper medical care in the Marion County jail system, holding Sheriff Anderson in contempt. I
31. Despite the awareness of problems at the facility, including their knowledge of pending lawsuits and complaints, neither CCA nor the Sheriff Anderson has taken steps to correct the problems.
C. UNSAFE AND INHUMANE CONDITION OF JAIL #2 32. CCA is responsible for providing a safe and humane facility for the housing of inmates at the Jail #2 facility. 33. Sheriff Anderson is responsible for ensuring that CCA provides a safe and humane facility for the housing of inmates at the Jail #2 facility. 34. CCA has exposed Plaintiffs and the class they represent to unsafe conditions at the Jail #2 facility. These include dangers including razors left in an open wastebasket from which inmates regularly retrieve blades in order to fashion weapons, security cameras throughout the facility that do not work properly, a shortage of radios for CCA staff so as to contact someone in the event of an emergency, the escorting of inmates by untrained and unarmed individuals, such as nurses, leading to the possibility of hostage situations. Further, CCA has failed to report physical altercations between CCA employees and inmates.
I See Judge Sarah Evans Barker decision in Marion County Inmates v. Sheriff Frank Anderson, (2003), 270 F. ~ SvPf . 1034.
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35. CCA has exposed Plaintiffs and the class they represent to unsafe and inhumane conditions which include mold growing in vents and on walls and floors at Jail #2; insect infestation at the facility including the presence spiders, roaches, gnats and fruit flies; heating and air conditioning systems that do not work; and a lack of ventilation in the facility. Inmates have been provided used and tattered clothing and shoes with holes that often do not fit. In addition, rather than hire an outside contractor, CCA forced inmates to shovel raw sewage at the facility when a sewer line broke.
36. Plaintiffs and other inmates filed complaints/grievances with the Jail #2 regarding the unsafe and inhumane conditions at the Jail #2 facility.
37. Correction officers at the facility have alerted CCA, including CCA's corporate offices in Tennessee, regarding the security problems at the Jail #2 facility.
38. Sheriff Anderson is aware or should be aware of the unsafe and inhumane conditions of Jail #2 and, in fact, in 2003 was held in contempt by this Court for not adequately addressing the unsafe and inhumane conditions within the Marion County Jail system.2
39. The unsafe and inhumane conditions at the Jail #2 facility have resulted in the denial of basic human needs and the minimal civilized measures of life's necessities, thus amounting to punishment in violation of the 14th and 8th Amendments to the Constitution and a violation of the Indiana law.
D. CCA'S FAILURE TO PROVIDE GRIEVANCE PROCESS TO INMATES 40. CCA is responsible for providing a process by which inmates may file grievances under the Prison Litigation Refonn Act and Indiana law. 41. SheriffAnderson is respOnsible for ensuring that CCA provides that grievance process.
SJ/lp 2 Marion County Inmates v. Sheriff Frank Anderson, (2003), 270 F. 2W 1034.
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42. That during their incarceration, the Plaintiffs and several members of the class they represent attempted to lodge numerous administrative grievances pursuant to the Prison Litigation Reform Act prior to filing this matter.
43. CCA administrators at the Jail #2 facility would often require inmates to go through a preliminary complaint stage prior to filing an inmate administrative grievance, would refuse to take complaints/grievances, would "lose" complaints/grievances, return complaints/grievances they received, and even tear up complaint/grievances in the presence of the inmates who tried to file them. On the few occasions in which CCA acknowledged an inmate's administrative complaint/grievance, CCA refused to provide a written response.
44. Out of the numerous administrative complaints/grievances ofwhich Plaintiffs counsel is aware of, not a single inmate ever succeeded in getting a written response from CCA to a complaint/grievance filed regarding the Jail #2 facility.
45. CCA does not process inmate complaints/grievances as part of a deliberate legal strategy to give its legal counsel grounds to argue for dismissal of inmate lawsuits based on their alleged failure to exhaust administrative remedies.
E. FACTS SUPPORTING PUNITITIVE DAMAGES AND CANCELLATION OF JAIL #2 CONTRACT
46. Further support for those sanctions is that CCA has threatened, intimidated and disciplined Jail #2 employees, including nurses and correctional officers, who have attempted to report medication and security problems at the facility. Some of those individuals, such as nurses, are required by Indiana law to file those reports.
47. Further, CCA has altered, concealed and even destroyed reports Jail #2 employees have made regarding problems at the facility.
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48. Further, CCA has failed to report medication errors and other problems at the facility as required by Indiana law.
49. That, taken collectively, CCA has engaged in a thorough and systemic effort to cover up problems of the Jail #2 facility and have even sought to deny inmates access to the courts by refusing to process administrative grievances.
50. CCA's conduct with regard to the operation of Jail #2, is befitting the harshest sanctions this Court can offer, including not only an injunction in this matter to ensure legal compliance, but a significant award of punitive damages and the judicial termination of the contract CCA holds with the Marion County Sheriffs Department to operate the Jail #2 facility. In addition, given thisCourfs previous order in 2003, the Court should consider holding Sheriff Anderson in contempt if the problems at the Jail #2 facility, which are outlined in this Complaint, are not promptly addressed.
III. LEGAL CLAIMS COUNT I
(Defendant CCA's Failure to Provide Proper and Adequate Medical Care Violates the United States Constitution)
51. The failure ofCCA to provide proper and adequate medical care to the Jail #2 inmates violates the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the United States Constitution as applied to convicted prisoners.
COUNT II (Defendant CCA's Failure to Provide Proper and Adequate Medical Care
to Inmates Violates 210 lAC 3-1-11) 52. The failure of Defendant CCA to provide proper and adequate medical care to the Jail #2inmates violates the Indiana Administrative Code, in particular 201 lAC 3-1-11.
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COUNT III (Defendant CCA's Failure to Provide Safe and Humane Conditions at the Jail #2 Facility
Violates the United States Constitution)
53. The conditions of the Jail #2 facility operated by CCA violate the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the
United States Constitution as applied to convicted prisoners.
COUNT IV (Defendant CCA's Failure to Provide Safe and Humane Conditions at the Jail #2 Facility
Violates the Indiana Administrative Code)
54. The unsafe and inhumane conditions of the Jail #2 facility operated by CCA violate
the Indiana Administrative Code, in particular 210 lAC 3-1-7, 210 lAC 3-1-9, 210 IAC 3-1-10,
210 IAC 3-1-13.
COUNT V (Defendant CCA's Failure to Provide Proper and Adequate Medical Care
Violates the United States Constitution)
55. The refusal of CCA to process grievances at the Jail #2 facility violates the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th
Amendment to the United States Constitution as applied to convicted prisoners.
COUNT V) (Defendant CCA's Failure to Process Administrative Grievances
Violate the Prison Litigation Reform Act)
56. The refusal of CCA to process grievances regarding the lack of proper medical
treatment and the conditions at the Jail #2 facility violates the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the United States
Constitution as applied to convicted prisoners.
COUNT VII (Defendant CCA's Failure to Process Administrative Grievances
Violate the Prison Litigation Reform Act)
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57. The refusal of CCA to process grievances at the Jail #2 facility violates the Prison Litigation Refonn Act, namely 18 U.S.c. §3626.
COUNTIIX (Defendant CCA's Failure to Process Administrative Grievances Violate Inmates Rights Under the Indiana Administrative Code) 58. The refusal of CCA to process grievances at the Jail #2 facility, including the failure to
put responses to those grievances in writing, violates the Indiana Administrative Code, in particular 210 lAC 3-1-15(h).
COUNT IX (Defendant CCA Breached Third Party Contractual Duties Owed to Inmates) 59. Defendant CCA breached duties it had under the contract it entered into with the Indianapolis-Marion County consolidated government by not providing proper medical care to inmates, not providing inmates with a safe and healthy environment, failing to process grievances of inmates and provide written responses to those grievances, violation of the 14th and 8th
Amendment to the United States Constitution and violation ofthe Indiana Administrative Code.
COUNT X (Defendant Sheriff Anderson Failed to Supervise the
Provision of Medical Care to Inmates at Jail #2) 60. Sheriff Anderson knew or should have known that CCA regularly failed to provide the
inmates at the Jail #2 facility proper and adequate medial care, which failure violated the inmates' rights under the 14th Amendment and the 8th Amendment as well as violated the inmates rights
under the Indiana Administrative Code, in particular 201 lAC 3-1-11. COUNT XI
(Defendant Sheriff Anderson Failed to Ensure Safe and Humane Conditions at Jail #2) 61. Sheriff Anderson knew or should have known that the conditions of the Jail #2 facility
operated by CCA violate the 14th and 8th Amendment to the Constitution, as well as the Indiana
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Administrative Code, including 210 lAC 3-1-7,210 lAC 3-1-9, 210 lAC 3-1-10, 210 lAC 3-1-13. Sheriff Anderson failed to take steps to remedy the violation ofthose administrative provisions.
COUNT XII (Defendant Sheriff Anderson CCA's Permitted CCA to Violate Inmates' Right to Pursue Grievances through the Administrative Process) 62. Sheriff Anderson knew or should have known that CCA was refusing to process inmate grievances at the Jail #2 facility, and refusing to provide written responses to said grievances, a violation of the Prison Litigation Reform Act, namely 18 U.S.C. § 3626, and Indiana Administrative Code, in particular 210 lAC 3-1-15(h).
IV. PRAYER FOR RELIEF Wherefore, the Plaintiffs, on behalf of themselves and the class they represent, request the following: 63. The Court accept jurisdiction ofthis case and set it for a hearing. 64. Certify this case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure with the class as specified above, and appoint the undersigned as class counsel pursuant to Rule 23(g). 65. Enter a declaratory judgment that the actions and inactions of the Defendants described herein violate the 14th and 8th Amendments to the United States Constitution. 66. Enter a declaratory judgment that the actions and inactions of the defendants described herein violate the Indiana Administrative Code, in particular 210 lAC 3-1 et seq. 67. Enjoin the Defendants from continuing to violate federal and state law regarding the medical care and treatment ofthe Jail #2 inmates. 68 Enjoin the Defendants from continuing to violate federal and state law regarding the unsafe and inhumane conditions at the Jail #2 facility.

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69. Enjoin the Defendants from continuing to violate federal and state law regarding the failure of CCA to process inmate administrative grievances at the Jail #2 facility, including not providing inmates with written responses to those grievances.
70. Enter an order finding CCA's conduct in this case so egregious, yet so likely to be repeated given CCA's history, as to justify judicial termination of CCA's contract to run the Jail #2 facility.
71. Order CCA to pay substantial punitive damages as permitted by law. 72. Again hold Defendant Sheriff Anderson in contempt if the issues at Jail #2 raised in this Complaint are not promptly addressed. 73. Grant counsel for the Plaintiffs and their represented class reasonable attorney's fees and costs pursuant to 42 U.S.C. §1988 and other applicable law. 74. Award all other proper relief.
Respectfully submitted, ROBERTS & BISHOP

ROBERTS & BISHOP 118 North Delaware Street Indianapolis, Indiana 46204 Telephone: (317) 631-0172 Facsimile: (317) 631-0178

Paul K. Ogde d. Atty No. 13737-49 Kenneth T. Roberts, Ind. Atty. No. 6099-49 Tasha R. Roberts, Ind. Atty. No. 22520-49 Adam Lenkowsky, Ind. Atty. No. 24277-49

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 Case 1:08-cv-00431-LJM-DML Document 17 Filed 04/28/08 Page 1 of 19 PageID #: 59

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS, BILLY FORD, ERIC STAGGS, TIMOTHY-PATRICK TREACY, RANDY CARR, on their own behalf and on behalf of a class of those similarly situated,
Plaintiffs,
vs.
CCA OF TENNESSEE, LLC d/b/a CORRECTIONS CORPORATION OF AMERICA, WARDEN JEFF CONWAY, NEIL PROBST, TIMOTHY LITTLE, VIRGINIA LEE, and MARION COUNTY SHERIFF FRANK ANDERSON,
Defendants.

) ) ) ) ) ) ) Cause No. 1:08-CV-0431-DFH-WTL ) ) ) ) ) ) ) ) ) ) )

AMENDED COMPLAINT FOR DECLARATORY AND INUNCTIVE RELIEF

I. INTRODUCTION

1. This is a class action complaint for declaratory and injunctive relief challenging as

unconstitutional and illegal certain actions and inactions of CCA and Jail #2 supervisors, including

the following: 1) the medical treatment and non-treatment of inmates at the Jail #2 facility

managed by Defendant CCA of Tennessee, LLC d/b/a Corrections Corporation of America

(hereinafter “CCA”; 2) the unsafe and inhumane conditions of the Jail #2 facility; and 3) the

violation of the law in handling inmate mail; 4) failure to provide inmates with medical records

upon request; 5) failure of CCA to comply with the law regarding medical privacy; 6) failure to

report medical errors during patient treatment; 6) CCA’s refusal to process numerous internal

inmate grievances at Jail #2 or provide written responses to those grievances. Sheriff Frank

Anderson is named as a Defendant in this matter for failing to oversee CCA’s compliance with the

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Case 1:08-cv-00431-LJM-DML Document 17 Filed 04/28/08 Page 2 of 19 PageID #: 60
contract for privatized jail services and failing to ensure those services were provided in accordance with federal and state law.
II. JURISDICTION, VENUE AND CAUSE OF ACTION 2. This Court has jurisdiction of this cause pursuant to 28 U.S.C. §§ 1331 and 1343. 3. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391. 4. Declaratory relief is authorized by 28 U.S.C. §§2201 and 2202 and by Rule 57 of the Federal Rules of Civil Procedure. 5. This action is brought, pursuant to 42 U.S.C. §1983 to redress the deprivation, under color of state law, of rights secured by the laws and constitution of the United States of America. 6. This court has jurisdiction of the supplemental state law claims pursuant to 28 U.S.C. §1367.
III. PARTIES 7. Plaintiff Alan Kress is an inmate confined in the Jail #2 facility, awaiting trial. 8. Plaintiff Billy Ford is an inmate confined in the Jail #2 facility, awaiting trial. 10. Plaintiff Timothy-Patrick Treacy is an inmate confined in the Jail #2 facility, awaiting trial. 11. Plaintiff Randy Carr is an inmate confined in the Jail #2 facility, awaiting trial. 12. Plaintiff Eric Staggs is an inmate confined in the Jail #2 facility, awaiting trial. 13. Defendant CCA is a limited liability company which has its home office in Nashville, Tennessee. 14. Defendant Jeff Conway is warden of the Jail #2 facility. 15. Defendant Timothy Little is health services administrator at the Jail #2 facility. 16. Defendant Neil Probst is the doctor who provides medical services at the Jail #2 facility.
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17. Defendant Virginia. Lee is a unit manager at the Jail #2 facility. 18. Defendant Sheriff Frank Anderson is the elected Sheriff of Marion County.
IV. CLASS ACTION ALLEGATIONS 19. This action is brought by the Plaintiffs on their own behalf and on behalf of a class of those similarly-situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 20. The class is defined as:
any and all persons currently confined, or who will be in the future confined, in the Jail #2 facility. 21. All requirements of Rule 23(a) are met in this cause in that: a. The class is so numerous that joinder of all members is impractical. Jail #2 has approximately 1030 beds and is normally near capacity. b. There are questions of law or fact common to the class: whether the medical treatment and non-treatment of inmates, the conditions of the Jail #2 facility, and CCA’s refusal to process inmate complaints violate the United States Constitution and federal and state law. In addition, Sheriff Anderson’s failure to monitor the contract and ensure CCA complies with the law in providing jail services is likewise a question of law and/or fact common to the class. c. The claims of the representative Plaintiffs are typical of those of the class. d. The representative parties will fairly and adequately protect the interests of the class. 22. Further, the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure are met in this cause in that the Defendants have acted, and refused to act, on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
V. FACTS A. GENERAL BACKGROUND 23. Plaintiffs are all inmates at the Jail #2 facility.
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24. Defendant CCA manages prison and jail facilities in various states, including Indiana. In particular to this case, CCA contracts with the Marion County Sheriff to operate Jail #2, which is located at 730 E. Washington Street, Indianapolis, Indiana 46202. Defendants Conway, Probst, Little and Lee are all employed by CCA and work at the Jail #2 facility.
25. Defendant Frank Anderson, elected Sheriff of Marion County, is responsible, pursuant to IC 36-2-13-5 and other Indiana statutes and regulations, for maintaining jail facilities throughout Marion County, including overseeing the privatized Jail #2 facility run by CCA at the Jail #2 facility.
26. Defendant Sheriff Anderson appoints a “contract monitor” who is responsible for inspecting the facility and its operations, as well as ensuring CCA provides jail services in accordance with the terms of the contract and federal and state law.
B. FAILURE TO PROVIDE PROPER MEDICAL CARE AND TREATMENT TO INMATES
27. CCA is responsible providing medical care and treatment to the inmates in the Jail #2 facility.
28. Sheriff Anderson is responsible for ensuring that CCA provides the inmates of Jail #2 with proper and adequate medical care and treatment.
29. CCA failed to provide proper and adequate medical care and treatment to the Plaintiffs and the class they represent.
30. Examples of improper and inadequate medical treatment include, but are not limited to, CCA failing to provide inmates with medication, providing medication late or doubling up on medication by providing back-to-back doses, providing inmates with the wrong medication, providing inmates with expired and/or other inmate’s medication, and failing to report medication errors involving inmates as required by Indiana law.
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31. Plaintiffs and the class they represent have suffered health problems as a result of not getting their medication. Some inmates have passed out, some have had seizures, while at least two inmates have recently died.
32. Plaintiffs, and the class they represent, filed complaints/grievances with the Jail #2 regarding the improper and inadequate medical treatment they received.
33. Defendant CCA and Defendant Sheriff Anderson have been on notice for some time regarding the improper and inadequate medical treatment provided to inmates at the Jail #2 facility.
34. That, in fact, a lawsuit filed by eight nurses, former employees of CCA, is pending before this court as Cause No. 1:08-CV-254-SFB-JMS. In the Complaint, the Nurses detail the same failure of CCA to provide inmates with adequate medical care and treatment that is detailed in this Complaint. Several other lawsuits are pending against CCA alleging the failure to provide proper medical care at the Jail #2 facility. In addition, this Court in 2003 addressed the failure to provide proper medical care in the Marion County jail system, holding Sheriff Anderson in contempt.1
35. Despite the awareness of problems at the Jail #2 facility, including their knowledge of pending lawsuits and complaints, neither CCA nor Sheriff Anderson has taken steps to correct the problems.
C. UNSAFE AND INHUMANE CONDITION OF JAIL #2 36. CCA is responsible for providing a safe and humane facility for the housing of inmates at the Jail #2 facility. 37. Sheriff Anderson is responsible for ensuring that CCA provides a safe and humane facility for the housing of inmates at the Jail #2 facility.
1 See Judge Sarah Evans Barker decision in Marion County Inmates v. Sheriff Frank Anderson, (2003), 270 F. Supp. 1034.
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38. CCA has exposed Plaintiffs and the class they represent to unsafe conditions at the Jail #2 facility. These include dangers including razors left in an open wastebasket from which inmates regularly retrieve blades in order to fashion weapons, security cameras throughout the facility that do not work properly, a shortage of radios for CCA staff so as to contact someone in the event of an emergency, the escorting of inmates by untrained and unarmed individuals, such as nurses, leading to possible hostage situations. CCA staff at Jail #2 has failed to report physical altercations and other incidents between CCA employees and staff at the facility.
39. Correction officers at the facility have alerted CCA, including CCA’s corporate offices in Tennessee, regarding the security problems at the Jail #2 facility. CCA failed to take any action in response to those reported problems.
40. CCA has exposed Plaintiffs and the class they represent to unsafe and inhumane conditions which include mold growing in vents and on walls and floors at Jail #2; insect infestation at the facility including the presence spiders, roaches, gnats and fruit flies; heating and air conditioning systems that do not work; and a lack of ventilation in the facility. Inmates have been provided used and tattered clothing and shoes with holes that often do not fit. In addition, rather than hire an outside contractor, CCA forced inmates to shovel raw sewage at the facility when a sewer line broke.
41. Plaintiffs and other inmates filed complaints/grievances with the Jail #2 regarding the unsafe and inhumane conditions at the Jail #2 facility.
42. Sheriff Anderson knew or should have known of the unsafe and inhumane conditions of Jail #2 and, in fact, in 2003 was held in contempt by this Court for not adequately addressing the unsafe and inhumane conditions within the Marion County Jail system.2
2 Marion County Inmates v. Sheriff Frank Anderson, (2003), 270 F.Supp.2d 1034.
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43. The unsafe and inhumane conditions at the Jail #2 facility have resulted in the denial of basic human needs and the minimal civilized measures of life’s necessities, thus amounting to punishment in violation of the 14th and 8th Amendments to the Constitution and a violation of the Indiana law.
D. CCA’s HANDLING INMATE MAIL IN VIOLATION OF INDIANA LAW 44. Inmates have the right to receive personal and legal mail under Indiana law. 45. CCA employees have told inmates that receipt of mail is a privilege that had to be earned and could be taken away. 46. CCA has attempted to create its own mail policy, which policy contravenes 210 IAC 3-1-16, which regulates the handling of mail at county jails. 47. CCA has at times prevented Plaintiffs, and the class they represent, from sending and receiving personal mail, or delayed the sending or receiving of that mail by several days if not weeks. 48. CCA has at times prevented Plaintiffs, and the class they represent, from sending and receiving legal mail, or delayed the sending or receiving of that mail by several days if not weeks. 49. CCA’s handling of inmate mail which violates Indiana law and CCA’s own purported mail policy. 50. Sheriff Anderson knew or should have known that CCA could not create and enforce a mail policy that violated Indiana law. Further, Sheriff Anderson knew or should have known the CCA was violating Indiana law and CCA’s own policy regarding the handling of inmate personal and legal mail and failed to take action to correct action to require CCA to comply with the law and its own policies.
E. CCA’S FAILURE TO PROVIDE MEDICAL RECORDS 51. Plaintiffs, and the class they represent, have requested their medical records.
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52. CCA has refused to provide those medical records claiming inmates do not have a right to medical records while they are incarcerated.
53. The Health Insurance Portability and Accountability Act (HIPAA) and IC 16-39-1-1 require that medical records be provided upon request of the patient. Contrary to CCA’s claim, there is no provision that allows CCA to deny medical records to inmates because of their incarceration.
54. Sheriff Anderson knew about or should have known about CCA’s violation of federal and state law regarding providing inmates with their medical files upon request and failed to take action to require CCA to comply with that law.
F. CCA VIOLATED INMATES’ PRIVACY IN VIOLATION OF HIPAA 55. During the intake process and other times, CCA conducts medical examinations of Plaintiffs, and the class they represent, in the audio and visual presence of other inmates. 56. HIPAA requires that medical examinations be done in private and that details uncovered during said intakes and other medical examinations not be revealed to other inmates. 57. Defendant Sheriff Anderson knew or should have known that CCA was violating inmates’ privacy rights in contravention of HIPAA during the intakes and medical examinations, yet failed to take action to ensure CCA complied with the law.
G. FAILURE TO REPORT MEDICAL ERRORS 58. That Plaintiffs and the class they represent have been the victims of medical errors, where they were given the wrong medication, not given medication, given expired medication or other inmates’ medication. 59. CCA’s medical staff failed to report medical errors as required by Indiana law. 60. CCA has failed to record those medical errors and other times have ordered Jail #2 employees to alter or destroy records to conceal medical errors.
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61. Sheriff Anderson knew or should have known about the failure of CCA to report medical errors as required by Indiana law and has failed to take action to require CCA to comply with Indiana law.
H. CCA’S FAILURE TO PROVIDE GRIEVANCE PROCESS TO INMATES 62. CCA is responsible for providing a grievance process in accordance with the Prison Litigation Reform Act and Indiana law. 63. Sheriff Anderson is responsible for ensuring that CCA provides that grievance process as set forth by federal and state law. 64. Rather than follow the Sheriff’s grievance procedure which was created pursuant to Indiana law, CCA has attempted to create its own grievance procedures. 65. That during their incarceration, the Plaintiffs, and members of the class they represent, have attempted to lodge numerous administrative grievances. 66. CCA administrators at the Jail #2 facility, including those identified as Defendants, have often required Plaintiffs, and the class they represent, to go through a preliminary complaint stage (called an “informal”) prior to filing an inmate administrative grievance, would often refuse to accept informals or grievances, would refuse to provide forms to make complaints, would “lose” informals and grievances, return informals and grievances they received, and even tear up grievances in the presence of the inmates who tried to file them. 67. CCA would only rarely provide inmates with written responses, even though written responses to grievances are required by Indiana law. 68. CCA’s handling of grievances violate Indiana law and its own purported grievance process.
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69. CCA does not process inmate grievances as part of a deliberate legal strategy to give its legal counsel grounds to argue for dismissal of inmate lawsuits based on their alleged failure to exhaust administrative remedies.
70. Further CCA administrators, including those named as Defendants, have financial incentives that are affected negative when inmates file grievances or are successful in the outcome of their grievances.
71. Sheriff Anderson knew or should have known that CCA was violating Indiana law by establishing and enforcing a grievance procedure which violates Indiana law and his own grievance procedures.
72. Sheriff Anderson knew or should have known that CCA was not processing inmate grievances and deliberating blocking the grievance process, and failed to take any action to force CCA to comply with the PLRA and Indiana law.
I. INCENTIVES RECEIVED BY CCA ADMINISTRATORS 73. Administrative staff at Jail #2, including Defendants Conway, receive financial incentives based on the rating of the Jail #2 facility. 74. The rating of the Jail #2 facility is based at least partially on the number of grievances filed by inmates at the facility and the outcome of those grievances, savings in the medical treatment of the inmates, the number of inmates logged in as having been seen by medical staff at the Jail #2 facility, medical errors reported, and various incident reports at the facility. 75. Defendants have financial incentives to reduce the number of grievances and provide the named Plaintiffs, and the class they represent, with substandard care. Defendant Conway and Defendant Lee have actively engaged in a concerted effort to block the grievance process. Defendants Conway, Little and Probst have all acted to provide the inmates with substandard care that is deliberately indifferent to the needs of the inmates at the Jail #2 facility.
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76. Defendants have a financial incentive to cover up incidents at the Jail #2 facility and have instructed employees to alter records and other documentation so as to improve Jail #2’s rating.
77. Defendants have a financial incentive to inflate numbers coming out of the medical and have, in fact, grossly inflated those numbers.
J. FACTS SUPPORTING PUNITITIVE DAMAGES AND CANCELLATION OF JAIL #2 CONTRACT
78. Support for those sanctions is that CCA has threatened, intimidated and disciplined Jail #2 employees, including nurses and correctional officers, who have attempted to report medication and security problems at the facility. Some of those individuals, such as nurses, are required by Indiana law to file those reports.
79. CCA has altered, concealed and even destroyed reports Jail #2 employees have made regarding problems at the facility.
80. CCA and its medical staff have failed to report medication errors and other problems at the facility as required by Indiana law.
81. That, taken collectively, CCA has engaged in a thorough and systemic effort to cover up problems at the Jail #2 facility, an effort strongly encouraged by CCA’s payment of financial incentives to Warden Conway and other Jail #2 administrators. In addition, CCA has sought to deny inmates access to the courts by refusing to process administrative grievances.
82. CCA’s conduct with regard to the operation of Jail #2 is befitting the harshest sanctions this Court can offer, including not only an injunction to ensure CCA complies with federal and state law, but a significant award of punitive damages and the judicial termination of the contract CCA holds with the Marion County Sheriff’s Department to operate the Jail #2 facility.
83. In addition, given this Court’s previous order in 2003, the Court should consider holding Sheriff Anderson in contempt if the problems at the Jail #2 facility, which are outlined in
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this Complaint, are not immediately addressed and require that Sheriff Anderson pay an award of punitive damages due to the failure of his office to supervise the Jail #2 facility.
VI. LEGAL CLAIMS AGAINST CCA COUNT ONE
(CCA’s Failure to Provide Proper and Adequate Medical Care Violates the United States Constitution)
84. The failure of CCA to provide proper and adequate medical care to the Jail #2 inmates violates the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the United States Constitution as applied to convicted prisoners.
COUNT TWO (CCA’s Failure to Provide Proper and Adequate Medical Care
to Inmates Violates 210 IAC 3-1-11) 85. The failure of Defendant CCA to provide proper and adequate medical care to the Jail #2 inmates violates the Indiana Administrative Code, in particular 201 IAC 3-1-11.
COUNT THREE (CCA’s Failure to Provide Safe and Humane Conditions at the Jail #2 Facility
Violates the United States Constitution) 86. The conditions of the Jail #2 facility operated by CCA violate the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the United States Constitution as applied to convicted prisoners.
COUNT FOUR (CCA’s Failure to Provide Safe and Humane Conditions at the Jail #2 Facility
Violates the Indiana Administrative Code) 87. The unsafe and inhumane conditions of the Jail #2 facility operated by CCA violate the Indiana Administrative Code, in particular 210 IAC 3-1-7, 210 IAC 3-1-9, 210 IAC 3-1-10, 210 IAC 3-1-13.
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COUNT FIVE (CCA’s Failure to Process Administrative Grievances
Violates the Prison Litigation Reform Act) 88. The refusal of CCA to process grievances at the Jail #2 facility violates the Prison Litigation Reform Act, namely 18 U.S.C. §3626.
COUNT SIX (CCA’s Failure to Process Administrative Grievances Violates Inmates’ Rights Under the Indiana Administrative Code) 89. Further, CCA’s creation of its own grievance process, including the creation of an “informal” process inmates must go through prior to filing a grievance, violates, Indiana law, in particular, 210 IAC 3-1-15(h). 90. The refusal of CCA to process grievances at the Jail #2 facility, including the failure to put responses to those grievances in writing, violates Indiana law, in particular, 210 IAC 3-1-15(h) as well as CCA’s own grievance process.
COUNT SEVEN (CCA Breached Third Party Contractual Duties Owed to Inmates) 91. Defendant CCA breached duties it had under the contract it entered into with the Marion County Sheriff’s Office by violating federal and state laws and the terms of that contract. The Plaintiffs, and the class they represent, are third party beneficiaries of that contract.
COUNT EIGHT (CCA Violates Inmates’ Right to Send and Receive Personal and Legal Mail) 92. By not allowing inmates at the Jail #2 facility to receive and send personal and legal mail, or delaying that mail, CCA violated 210 IAC 3-1-16. Further, CCA violated its own policies regarding the handling of mail.
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COUNT NINE (CCA Violates Duty Owed Under HIPAA and IC 16-39-1-1 to Provide Medical Records)
93. CCA breached a duty they owed under the HIPAA and IC 16-39-1-1 when they refused to provide Plaintiff and the class they represent medical records upon request.
COUNT TEN (CCA Violation of Inmates’ Privacy Rights Under HIPAA) 94. CCA violated inmates’ privacy rights under HIPAA when CCA’s medical staff conducted intakes and other medical examinations in the presence of other inmates. 95. Sheriff Anderson knew or should have known that the intake and medical examination process used by inmates violated their privacy rights which are protected under HIPAA.
COUNT ELEVEN (CCA’s Violation of Indiana Law By Failing to Report Medical Errors) 96. CCA’s medical staff violated Indiana law when it failed to report medical errors as required by Indiana law.
COUNT TWELVE (CCA’s Financial Incentives Paid to Jail #2 Administrators Violate the Constitution)
97. CCA’s payment of incentives to administrators to block the grievance process, cover up incidents at the jail and inflate numbers, and deny the inmates proper medical care, violate the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the United States Constitution as applied to convicted prisoners.
VII. LEGAL CLAIMS AGAINST SHERIFF ANDERSON COUNT THIRTEEN
(Sheriff Anderson Failed to Supervise the Provision of Medical Care to Inmates at Jail #2) 98. Sheriff Anderson knew or should have known that CCA regularly failed to provide the inmates at the Jail #2 facility proper and adequate medical care, which failure violated the inmates’ rights under the 14th Amendment and the 8th Amendment as well as violated the inmates’
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rights under the Indiana Administrative Code, in particular 201 IAC 3-1-11. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy the violation of those legal provisions.
COUNT FOURTEEN (Sheriff Anderson Failed to Ensure Safe and Humane Conditions at Jail #2) 99. Sheriff Anderson knew or should have known that the conditions of the Jail #2 facility operated by CCA violate the 14th and 8th Amendment to the Constitution, as well as the Indiana Administrative Code, including 210 IAC 3-1-7, 210 IAC 3-1-9, 210 IAC 3-1-10, 210 IAC 3-1-13. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy the violation of these administrative provisions.
COUNT FIFTEEN (Sheriff Anderson CCA’s Permitted CCA to Violate Inmates’ Right to Pursue Grievances through the Administrative Process) 100. Sheriff Anderson knew or should have known that CCA had created its own grievance process in violation of Indiana law and Sheriff Anderson’s own grievance procedures. In addition, Sheriff Anderson knew or should have known that CCA was failing to process inmate grievances at the Jail #2 facility, failing to provide written responses to said grievances, which failures constitute a violation of the Prison Litigation Reform Act, namely 18 U.S.C. § 3626, 210 IAC 3-1-15(h), and CCA’s purported grievance process. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy these violations.
COUNT SIXTEEN (Sheriff Anderson Permitted CCA to Violate Inmates’ Right to Send
and Receive Personal and Legal Mail) 101. Sheriff Anderson knew or should have known that CCA had created a mail policy in that violated 210 IAC 3-1-16 and was acting in violation of Indiana law and CCA’s own purported mail policies when CCA did not allow inmates to send or receive personal and legal mail, or
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delayed that mail. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy these violations.
COUNT SEVENTEEN (Sheriff Anderson Permitted CCA to Violate Federal and Indiana Law Requiring CCA to
Provide Inmates With Their Medical Records Upon Request) 102. Sheriff Anderson knew or should have known that CCA refused to provide inmates with their medical records upon request and that such a failure to provide those records is a violation of HIPAA and Indiana law and IC 16-39-1-1. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy these violations.
COUNT EIGHTEEN (Sheriff Anderson Permitted CCA to Violate the Privacy Rights
of Inmates in Contravention of HIPAA) 1033. Sheriff Anderson knew or should have known that CCA violated inmates’ privacy rights under HIPAA when CCA’s medical staff conducted intakes and other medical examinations in the presence of other inmates. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy these violations.
COUNT NINETEEN (Sheriff Anderson Permitted CCA to Violate the Privacy Rights
of Inmates in Contravention of Indiana Law) 104. Sheriff Anderson knew or should have known that CCA nursing staff violated the law when it failed to report medical as required by Indiana law. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy these violations.
COUNT TWENTY (CCA’s Financial Incentives Paid to Jail #2 Administrators Violate the Constitution)
105. Sheriff Anderson knew or should have known that CCA’s payment of incentives to Jail #2 administrators to block the grievance process, cover up incidents at the jail and inflate numbers, and deny the inmates proper medical care, violate the 14th Amendment to the United States Constitution as applied to pre-trial detainees and the 8th Amendment to the United States
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Constitution as applied to convicted prisoners. Sheriff Anderson failed his duty to supervise CCA in this regard and to require that CCA take steps to remedy these violations.
VIII. PRAYER FOR RELIEF Wherefore, the Plaintiffs, on behalf of themselves and the class they represent, request the following: 106. The Court accept jurisdiction of this case and set it for a hearing. 107. Certify this case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure with the class as specified above, and appoint the undersigned as class counsel pursuant to Rule 23(g). 108. Enter a declaratory judgment that the actions and inactions of the Defendants described herein violate the 14th and 8th Amendments to the United States Constitution. 109. Enter a declaratory judgment that the actions and inactions of the defendants described herein violate the Indiana Administrative Code, in particular 210 IAC 3-1 et seq. 110. Enjoin the Defendants from continuing to violate federal and state law regarding the medical care and treatment of the Jail #2 inmates. 111. Enjoin the Defendants from continuing to violate federal and state law regarding the unsafe and inhumane conditions at the Jail #2 facility. 112. Enjoin the Defendants from continuing to violate federal and state law regarding the failure of CCA to process inmate administrative grievances at the Jail #2 facility, including not providing inmates with written responses to those grievances. 113. Enter an order finding CCA’s conduct in this case so egregious, yet so likely to be repeated given CCA’s history, as to justify judicial termination of CCA’s contract to run the Jail #2 facility. 114. Order CCA to pay substantial punitive damages as permitted by law.
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115. Order Sheriff Anderson to pay punitive damages as permitted by law.
116. Hold Sheriff Anderson in contempt if the issues at Jail #2 raised in this Complaint are
not promptly addressed.
117. Grant counsel for the Plaintiffs and their represented class reasonable attorney’s fees
and costs pursuant to 42 U.S.C. §1988 and other applicable law.
118. Award all other proper relief.
Respectfully submitted,
ROBERTS & BISHOP
/s/ Paul K. Ogden Paul K. Ogden Attorney # 13737-49 Attorney for Plaintiff
ROBERTS & BISHOP 118 North Delaware Street Indianapolis, Indiana 46204 Telephone: (317) 631-0172 Facsimile: (317) 631-0178
CERTIFICATE OF SERVICE
The undersigned affirms that on April 25, 2008, this document was served on the following:
Michael R. Rosiello BARNES & THORNBURG, LLP mrosiello@btlaw.com
William A. Hahn BARNES & THORNBURGH, LLP whahn@btlaw.com
Jonathan L. Mayes Chief Litigation Counsel OFFICE OF CORPORATION COUNSEL jmayes@indygov.org
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using the ECF system which sent notification of the filing and a link to an electronic copy of the document to all parties that participate in the ECF system. There are no parties that do not participate in the ECF system and thus no mailing is required.

Paul K. Ogden ROBERTS & BISHOP 118 North Delaware Street Indianapolis, Indiana 46204 Telephone: (317) 631-0172 Facsimile: (317) 631-0178 pogden@roberts-bishop.com

/s/Paul K. Ogden Paul K. Ogden

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS, BILLY FORD, ERIC STAGGS, TIMOTHY-PATRICK:TREACY, RANDY CARR, on their own behalf and on behalf of a class of those similarly situated,
Plaintiffs,
v.
CCA OF TENNESSEE, LLC d/b/a CORRECTIONS CORPORATION OF AMERICA, WARDEN JEFF CONWAY, NEIL PROBST, TIMOTHY LITTLE, VIRGINIA LEE, and MARION COUNTY SHERIFF FRANK ANDERSON,
Defendants.

) ) ) ) ) ) ) ) ) CASE NO. 1:08-cv-0431-DFH-TAB ) ) ) ) ) ) ) ) )

ENTRY ON PLAINTIFFS’ MOTION TO CERTIFY STATE LAW QUESTIONS

The plaintiffs in this case have moved to certify two questions of state law to the Indiana Supreme Court. For the reasons set forth below, the plaintiffs’ motion to certify is denied.

Plaintiffs Alan Kress, Billy Ford, Eric Staggs, Timothy-Patrick:Treacy, and Randy Carr filed this action against CCA of Tennessee, LLC, Warden Jeff Conway, Neil Probst, Timothy Little, Virginia Lee, and Marion County Sheriff Frank Anderson. Plaintiffs assert several claims related to the treatment and conditions they allege they have suffered in “Jail #2,” a Marion County jail managed by

defendant CCA under a contract with Marion County. Among their claims, the plaintiffs allege violations of federal and state law related to CCA’s alleged mishandling of Jail # 2 inmate mail and CCA’s alleged refusal to properly process or respond to Jail # 2 inmate grievances, which can be essential to an inmate’s ability to have a federal court hear any claims for federal constitutional violations. See 42 U.S.C. § 1997e(a) (requiring exhaustion of available administrative remedies before suit is brought by prisoner with respect to prison conditions).
The two questions the plaintiffs wish to be certified are:
(1) May a private jail company, such as CCA, adopt and enforce an inmate grievance policy that does not comply with Indiana law, in particular 210 Ind. Admin. Code § 3-1-15(h)? and
(2) May a private jail company, such as CCA, adopt and enforce a mail handling policy that does not comply with Indiana law, in particular 210 Ind. Admin. Code § 3-1-16?
Dkt. 38. These questions track issues raised in the Amended Complaint. In Count Six, the plaintiffs allege that “CCA’s creation of its own grievance process, including the creation of an ‘informal’ process inmates must go through prior to filing a grievance, violates Indiana law, in particular 210 IAC 3-1-15(h)” and “the refusal of CCA to process grievances at the Jail # 2 facility, including the failure to put responses to those grievances in writing, violates Indiana law, in particular, 210 IAC 3-1-15(h) as well as CCA’s own grievance process.” Complaint ¶¶ 89-90. In Count Eight, the plaintiffs allege that “by not allowing inmates at the Jail # 2 facility to receive and send personal and legal mail, or delaying that mail, CCA
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violated 210 IAC 3-1-16. Further, CCA violated its own policies regarding the
handling of mail.” Complaint ¶ 92.
Indiana Rule of Appellate Procedure 64 provides that a federal district court
sitting in Indiana may certify a question of Indiana law to the Indiana Supreme
Court “when it appears to the federal court that a proceeding presents an issue
of state law that is determinative of the case and on which there is no clear
controlling Indiana precedent.”
Certification can be a useful procedure, but one that often carries with it
substantial costs and delays. The Seventh Circuit has set out a number of factors
that federal courts should consider to determine whether to refer a question to the
state’s highest court:
First, we said that the federal court ought to weigh the degree of uncertainty that exists on the state law issue. We noted that, in the past, our cases have directed that a court also consider whether the issue presents a matter of public concern, whether the issue is likely to recur, whether the issue is outcome determinative, and whether the state supreme court has had an opportunity to address the issue in other cases. We must also consider whether the supreme court of the state would consider the issue an important one in the growth of the state’s jurisprudence and whether resolution of the issue definitively will benefit future litigants or will almost exclusively affect the citizens of the state. Notably, we also said that, in determining whether an intrusion on the time of our colleagues on the state court is justifiable, we shall be more inclined to certify the question when the intermediate courts of the state are in disagreement on the issue or the issue is one of first impression for the court of last resort. On the other hand, we have said that fact specific issues, as well as issues upon which there is no serious doubt or that are not dispositive of the case, are not candidates for certification.
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Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 638-39 (7th Cir. 2002) (internal citations omitted); citing State Farm Mutual Automobile Ins. Co. v. Pate, 275 F.3d 666, 671-72 (7th Cir. 2001). As the Pate court stated, “these factors insure that federal courts will not overburden state courts with requests for certification when what is required is not the promulgation of new law but rather, the exercise of a court’s judgment.” Pate, 275 F.3d at 672.1
Certainty of Relevant Indiana Law
The defendants point out that courts in this district have consistently held on the merits of similar cases that inmates do not have private causes of action for alleged violations of any Indiana Jail Standards set forth in Title 210 of the Indiana Administrative Code. In Malone v. Becher, 2003 WL 22080737, *20 (S. D. Ind. Aug. 29, 2003), this court found that, “as a general rule, a state’s administrative regulations do not provide the source of an implied cause of action for damages against a local government. Rather, would-be plaintiffs must look to the statute to determine whether an express or implied cause of action is permitted.” Because nothing in the statute under which the Indiana Jail Standards were promulgated suggested that the legislature intended to give inmates a private cause of action for damages, “the court sees no basis for implying one.” Id., citing Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind. App. 1991);
1At this time, there are ten active district judges and three senior district judges in Indiana. If the Indiana Supreme Court accepted only one certified question per judge per year, the result would be a noticeable increase in the state court’s opinion-writing workload.
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see also Blanck v. Indiana Dept. of Corrections, 829 N.E.2d 505, 510 (Ind. 2005) (Indiana legislature did not bestow a private right of action on inmates seeking to challenge prison’s disciplinary decisions); Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind. App. 2007) (applying Blanck analysis broadly to review complaints brought by inmates seeking to enforce asserted statutory rights, and finding that state trial courts lack subject matter jurisdiction over inmates’ complaints unless an explicit private right of action is afforded by statute or an allegation is made that constitutional rights are being violated).
The plaintiffs attempt to distinguish the merits of their case from the merits of Malone and Blanck, suggesting that those cases and others of their ilk deal with the decisions made by correctional authorities, whereas these plaintiffs contend they challenge the rules under which the correctional authorities made their decisions. Pl. Reply. 2-3. They also argue that the correctional decisions challenged in the cases referenced by the defendants were grievable, whereas the rules they challenge, namely, CCA’s grievance and mail policies, are not grievable. Pl. Reply 3-4. Finally, they argue that because they are not able to bring grievances concerning the grievance and mail policies, and because their lawsuit is brought against a private jailor and not a governmental entity, the defendants’ reliance on a “theory” of no “private cause of action” is inapplicable to this case. Pl. Reply 3-4.
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In essence, the plaintiffs contend that the cases cited by defendants are “easily distinguishable.” Pl. Reply 6. However, the merits of the plaintiffs’ case, and whether or not the cases cited by defendants are readily distinguishable, are not the issues at hand. The plaintiffs have moved to certify questions to the Indiana Supreme Court, and the most important factor the court must consider is the certainty of the applicable state law. Pl. Br. 3, citing Pate, 275 F.3d at 671. There is no readily apparent split among the Indiana courts or other courts applying Indiana law in review of allegedly illegal prison policies. Although plaintiffs clearly disagree with that law, their disagreement does not create the level of uncertainty suggesting that the court should take the unusual step of certifying the plaintiffs’ questions to the Indiana Supreme Court.
It is possible, of course, that this court and others have not correctly predicted how the Indiana Supreme Court would resolve these issues.2 As the Seventh Circuit has explained, though, “at some level there is uncertainty in every application of state law. There is always a chance that a state supreme court, if it had the same case before it, might decide the case differently. This ever-present possibility is not sufficient to warrant certification.” Pate, 275 F.3d at 672. This premise is illustrated well by this case. To the extent that there are issues to be resolved on the merits regarding the legality of the CCA’s policies under the
2For a pointed example, see Schmitt v. American Family Mutual Ins. Co., 187 F.R.D. 568 (S.D. Ind. 1999), addressing an Indiana law issue in which five federal judges (two district judges and a unanimous panel of the Seventh Circuit) had agreed on one view, and the five justices of the Indiana Supreme Court reached the opposite result a few weeks later.
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Indiana Administrative Code, those are issues for this court to resolve at the appropriate stages of this proceeding. (Recall that plaintiffs chose to file this action in federal court.) In the meantime, the plaintiffs have failed to show a degree of uncertainty sufficient to warrant certification. The mere possibility that the state supreme court might decide differently does not warrant certification.
Other Certification Factors
The plaintiffs also argue that their questions are not fact-specific and that authoritative answers will have a broad significance. They state that “the ‘facts’ needed to answer these questions are the CCA and the Sheriff’s rules regarding handling grievances and the mail. No other facts are needed.” Pl. Reply 6. The argument misses the point. The issue pertinent to certification is the specificity of the facts, not the amount or number of facts required.3 Regardless of how many facts the plaintiffs will present, the questions they seek to have certified are based on two specific internal policies governing one jail facility and are limited to the discrete facts of this case. In support of their argument that these questions will have broad significance, the plaintiffs offer only the general assertion that “correctional facilities are being increasingly the subjects of
3In any case the plaintiffs’ position that a simple one-to-one comparison is all that will be required is belied by the plaintiffs’ suggestion at another point in their brief that the discovery they will require will include all inmates who have been housed in Jail # 2. Pl. Reply 4 (“Indeed, Plaintiffs believe the evidence obtained during discovery will overwhelmingly demonstrate that few if any inmates at Jail # 2 have ever been able to successfully complete the informal resolutiongrievance process set up by CCA so as to not be faced with inevitable exhaustion arguments by CCA’s attorneys.”).
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privatization. Almost all of these private correctional companies are from outside Indiana and arrive with rules in place that do not necessarily comply with Indiana law.” Pl. Reply 6. This unsupported and general observation is not sufficient to show that the specific questions the plaintiffs present will have broad significance beyond the instant matter.

Conclusion

For the foregoing reasons, the plaintiffs’ motion to certify questions for the Indiana Supreme Court is denied.

So ordered.

Date: October 17, 2008

DAVID F. HAMILTON, CHIEF JUDGE United States District Court Southern District of Indiana

Copies to:

William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com,angela.woodall@btlaw.com

Adam Lenkowsky ROBERTS & BISHOP alenkowsky@robertsbishop.com,johnsonas@uindy.edu,ecf.alenkowsky@gmail.com

Jonathan Lamont Mayes CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jmayes@indygov.org

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Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com Kenneth T. Roberts ROBERTS & BISHOP ktrobatty@aol.com Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS, BILLY FORD, ERIC STAGGS, RANDY CARR, on their own behalf and on behalf of a class of those similarly situated,
Plaintiffs,
v.
CCA OF TENNESSEE, LLC d/b/a CORRECTIONS CORPORATION OF AMERICA, WARDEN JEFF CONWAY, NEIL PROBST, TIMOTHY LITTLE, VIRGINIA LEE, and MARION COUNTY SHERIFF FRANK ANDERSON,
Defendants.

) ) ) ) ) ) ) ) CASE NO. 1:08-cv-0431-DFH-DML ) ) ) ) ) ) ) ) )

ENTRY ON PLAINTIFFS’ MOTION TO RECONSIDER OR CLARIFY

On July 9, 2008, the plaintiffs moved to certify two questions to the Indiana Supreme Court. The court denied the motion. See Kress v. CCA of Tennessee, LLC, 2008 WL 4627828 (S. D. Ind. Oct. 17, 2008); Dkt. 43. Now the plaintiffs ask that the court reconsider and/or clarify its denial, asserting that language in the court’s entry amounts to “a decision allowing CCA to avoid complying with the law based on its proffered private cause of action theory” and will “render futile not only jail regulations relating to grievance procedures, but also many federal and state laws governing the provision of medical services, medical privacy, and a host of other issues Plaintiffs have alleged that Defendant CCA regularly violates.” Pl. Mot. ¶ 4.

The motion at issue was a motion to certify. The merits of the plaintiffs’ case, as the court explained on pages 6 and 7 of its Entry, were not under consideration. See 2008 WL 4627828, *3; Dkt. 43 at 6-7. The only issue then being addressed was whether certification of the questions the plaintiffs presented was appropriate. In resolving that extremely limited issue, the court’s primary consideration was the level of certainty in the relevant law. See State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 671 (7th Cir. 2001). As the court explained, although the plaintiffs clearly believe that the line of cases cited by the court will be distinguishable on the merits, they failed to demonstrate a degree of uncertainty in the law sufficient for this court to take the unusual step of sending the questions presented to the Indiana Supreme Court for resolution, particularly because the plaintiffs have presented nearly identical issues to this court for resolution by way of their complaint. The plaintiffs’ motion ultimately was denied because the questions they presented did not approach the standard required for certification and because, in attempting to present identical questions to both this court and the Indiana Supreme Court, denial was appropriate in order to avoid wasting judicial resources.
Although their motion to certify was denied, the merits of plaintiffs’ case have not been decided. The plaintiffs suggest that the court’s decision on their motion to certify will be taken to have precedential effect. The Seventh Circuit has often said that district court decisions are not binding precedent. E.g., TMF Tool
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Co. v. Muller, 913 F.2d 1185, 1191 (7th Cir. 1990); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987); Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987). This court’s decision might have persuasive value, but for future motions to certify. Because the court’s decision was not on the merits, the court is not persuaded by the plaintiffs’ concern that the court’s entry leaves the defendants free to adopt a wide range of illegal rules and regulations. Pl. Mot. ¶ 8. The defendants are still bound by the law. This court will resolve the merits when those issues are ripe for adjudication. The plaintiffs’ motion to reconsider or clarify the Entry on their motion to certify is denied.

So ordered. Date: November 14, 2008

DAVID F. HAMILTON, CHIEF JUDGE United States District Court Southern District of Indiana

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Copies to: William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com,angela.woodall@btlaw.com Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com, johnsonas@uindy.edu,ecf.alenkowsky@gmail.com Jonathan Lamont Mayes CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jmayes@indygov.org Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com Kenneth T. Roberts ROBERTS & BISHOP ktrobatty@aol.com Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JODY OLMSTEAD,
Plaintiff,
v.
CCA OF TENNESSEE, LLC d/b/a CORRECTIONS CORPORATION OF AMERICA, WARDEN JEFF CONWAY, TIMOTHY LITTLE, UNKNOWN CCA MAINTENANCE STAFF, UNKNOWN CCA MEDICAL STAFF and MARION COUNTY SHERIFF FRANK ANDERSON,
Defendants.
ALAN KRESS, BILLY FORD, ERIC STAGGS, TIMOTHY-PATRICK TREACY, RANDY CARR, on their own behalf and on behalf of a class of those similarly situated,
Plaintiffs,
v.
CCA OF TENNESSEE, LLC d/b/a CORRECTIONS CORPORATION OF AMERICA, and MARION COUNTY SHERIFF FRANK ANDERSON,
Defendants.

) ) ) ) ) ) ) ) CASE NO. 1:08-cv-0029-DFH-DML ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:08-cv-0431-DFH-WTL ) ) ) ) ) ) )

ENTRY ON MOTIONS TO DISQUALIFY
Plaintiffs in these actions are prisoners who complain about their treatment and conditions in a Marion County correctional facility operated under a contract by a private company, defendant CCA of Tennessee, LLC, which does business as “Corrections Corporation of America.” On November 18, 2008, plaintiffs filed motions to disqualify me from presiding over both cases as the assigned district judge. Defendants have not responded. As explained below, both motions are denied.
The motions to disqualify do not cite applicable statutory or other authority. The governing statute is 28 U.S.C. § 455. Section 455(b) contains a detailed list of circumstances in which a judge must disqualify himself. None of those circumstances are present here, nor do plaintiffs argue that any are present. Section 455(a) provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The statute imposes an objective standard. United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985).
Defendants in these cases are represented by the law firm of Barnes & Thornburg. Two partners, Michael Rosiello and William A. Hahn, have entered their appearances. Plaintiffs’ motions to disqualify offer two grounds for disqualification. First, Mr. Hahn worked for me as a law clerk for one year (1999-
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2000) after he graduated from law school. Second, I was a partner in Barnes & Thornburg from 1991 until 1994, when I was appointed to the court.1 Plaintiffs argue that these circumstances create “a substantial appearance of impropriety” if I preside over these cases. In my view, neither circumstance warrants disqualification from these cases in 2008.
During my first two years on the court, I disqualified automatically from all Barnes & Thornburg cases to provide what is sometimes called a “cooling-off period.” Since that time, I have disqualified in Barnes & Thornburg cases if the case involved a matter in which the firm was involved while I was a lawyer there. See 28 U.S.C. § 455(b)(2). Since those first two years, I have presided over many cases in which Barnes & Thornburg has represented parties. Their clients have won many cases and lost many cases.
Several of my former law clerks have established law practices in Indianapolis, including Mr. Hahn. My practice has been to apply a one-year cooling off period to cases involving former law clerks. A lifetime of disqualification, as plaintiffs seem to demand, would be unwarranted. Mr. Hahn last worked for me more than eight years ago. His involvement in these cases does not warrant my disqualification.
1I was also an associate of the firm from 1984 until early January 1989. The other partner in the case, Mr. Rosiello, is also a friend whom I see socially two to three times per year. Mr. Rosiello and I are also both members of the same American Inn of Court, an organization whose purpose is to promote ethics, professionalism, civility, and skill in the practice of law.
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Plaintiffs’ motions also state that their counsel “has subsequently learned that a number of Judge Hamilton’s clerks have left the court to go to work for Barnes & Thornburg.” I am aware of my law clerks’ careers. I am aware of only one other former law clerk, in addition to Mr. Hahn, who has worked for Barnes & Thornburg. She worked there briefly in the mid-1990s before moving on to a different job in a different state.2
There may be circumstances, of course, when a judge has a personal relationship with a lawyer that would make it difficult for the judge to be impartial, or to be perceived as impartial by an objective observer informed of the relevant facts. See generally United States v. Murphy, 768 F.2d at 1536- 41 (7th Cir. 1985). As the Judicial Conference’s Committee on Codes of Conduct for Judges and Judicial Employees has recognized, this is not an issue susceptible to bright lines. See Advisory Opinion No. 11 (cited in Murphy, 768 F.2d at 1537, and advising that judge must exercise judgment in deciding whether to disqualify from case in which one attorney was godfather of judge’s child), available at www.uscourts.gov/guide/advisoryopinions.htm (last visited Dec. 11, 2008). The committee advised that the twofold test was “whether the judge feels capable of
2Plaintiffs’ counsel may be confusing full-time law clerks with law students who intern in my chambers, typically for one day per week for one semester. I am aware that several of those students have worked for Barnes & Thornburg and may still work there. My working relationships with student interns are not comparable to those with law clerks, and I have not imposed any cooling-off period with respect to those interns.
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disregarding the relationship and whether others can reasonably be expected to believe that the relationship is disregarded.” Id.
Like most judges, I know many lawyers in a blend of professional relationships and personal acquaintances and friendships. I often know lawyers on both sides of cases; I rule in favor of and against the clients of lawyers who have been friends. There is nothing unusual about that. The Seventh Circuit addressed the issue at some length in United States v. Murphy, where the court recognized that in modern American legal culture, friendships among judges and lawyers are common and desirable, and noted that “many courts have held that a judge need not disqualify himself just because a friend – even a close friend – appears as a lawyer.” 768 F.2d at 1537. At the same time, if the association exceeds what might reasonably be expected, unusual aspects might raise a reasonable question. Id. at 1538 (finding that objective observer might reasonably doubt judge’s objectivity where judge and prosecutor were best friends and the two families had planned a joint vacation immediately after the defendant’s sentencing). See also Alfini, Lubet, Shaman & Geyh, Judicial Conduct and Ethics § 4.09 at 4-42 to 4-45 (4th ed. 2007) (discussing balance of interests in considering whether social relationship calls for disqualification; balance depends on how close the personal relationship is).
The committee’s Advisory Opinion No. 24 offers additional guidance here. The opinion first addressed how a newly-appointed judge should handle payments
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for termination of the judge’s interest in a partnership, especially if payment is
made over a period of years. The committee went on to advise:
Apart from recusal during the period when the judge is receiving payments from a former law firm, there is a broader question of the appearance of impropriety in the judge’s hearing cases involving that firm. Many judges have an automatic rule of disqualification for a specified number of years after leaving the law firm. How long a judge should continue to recuse depends upon various circumstances, such as the relationship the judge had at the law firm with the lawyer appearing before the judge, the length of time since the judge left the law firm, and the relationship between the judge and the particular client and the importance of that client to the firm’s practice. The Committee recommends that judges consider a recusal period of at least two years, recognizing that there will be circumstances where a longer period may be more appropriate. In all cases in which the judge’s former law firm appears before the judge, the judge should carefully analyze the situation to determine whether his or her participation would create any appearance of impropriety.
Advisory Opinion 24 (emphasis added), available at www.uscourts.gov/guide/
advisoryopinions.htm (last visited Dec. 11, 2008). Some judges apply longer
recusal periods for their former law firms, and some even recuse for their entire
careers, but such long periods are not necessary or required. In Indianapolis and
the Southern District of Indiana, the legal community and court are relatively
small. A long-term recusal requirement for one judge and one major firm can shift
an unfair amount of work to other judges. Advisory Opinion 24 clearly implies
that a disqualification 14 years after a judge has joined the court is not necessary.
I have not ignored the last sentence from the quotation above, but there is nothing
unusual about this case that would call for any different approach. See also
Alfini, et al., Judicial Conduct and Ethics § 4.10A at 4-53 (“A policy requiring a
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judge to disqualify simply because he or she had a prior professional relationship with an attorney would be particularly burdensome on the judiciary.”).
Plaintiff’s counsel also complains that neither I nor defense counsel told him of Mr. Hahn’s work for me as a law clerk or my past partnership with Barnes & Thornburg. Section 455(e) provides that the specific grounds for disqualification in section 455(b) may not be waived, but the more general grounds in section 455(a) may be waived if the waiver “is preceded by a full disclosure on the record of the basis for disqualification.” See also Murphy, 768 F.2d at 1539. Two points are relevant here. First, for the reasons explained above, the circumstances here simply do not rise to the level of calling for disqualification under section 455(a), so there is no need for a waiver. Second, the key facts about my own biography, including my past work at Barnes & Thornburg are readily available in many public sources, including the court’s public website, www.insd.uscourts.gov/ Judges/default.htm (last visited Dec. 11, 2008). Similarly, Mr. Hahn’s clerkship with me is listed as part of his biography on the Barnes & Thornburg website, www.btlaw.com/Person.asp?Personnel_ID=153 (last visited Dec. 11, 2008). If there were anything unusual to disclose in this case, as there was in Murphy, where the judge and prosecutor were planning to take a vacation together with their families just after the sentencing, the disclosure and waiver process plaintiffs suggest would have been appropriate, but there is nothing unusual about the circumstances of this case.
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Accordingly, the motions to disqualify in both cases are denied.

So ordered. Date: December 11, 2008

DAVID F. HAMILTON, CHIEF JUDGE United States District Court Southern District of Indiana

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Copies to: William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com Jonathan Lamont Mayes CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jmayes@indygov.org Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com Kenneth T. Roberts ROBERTS & BISHOP ktrobatty@aol.com Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS, BILLY FORD, ERIC

)

STAGGS, TIMOTHY-PATRICK TREACY, )

RANDY CARR, on their own behalf and on )

behalf of a class of those similarly situated, )

Plaintiffs,

)

)

vs.

)

)

CCA OF TENNESSEE, LLC d/b/a

)

CORRECTIONS CORPORATION OF

)

AMERICA, WARDEN JEFF CONWAY, )

NEIL PROBST, TIMOTHY LITTLE,

)

VIRGINIA LEE, and MARION COUNTY )

SHERIFF FRANK ANDERSON,

)

Defendants.

)

1:08-cv-00431-LJM-DML

MEMORANDUM OPINION & ORDER ON DEFENDANTS’ AFFIRMATIVE DEFENSE Plaintiffs, Alan Kress (“Kress”), Billy Ford (“Ford”), Eric Staggs (“Staggs”), Timothy-
Patrick Treacy (“Treacy”), and Randy Carr (“Carr”) (collectively, “Plaintiffs”), are current and former inmates at Marion CountyJail II (“Jail II”). Compl. Defendants, CCA of Tennessee, LLC d/b/a Corrections Corporation of America, Warden Jeff Conway, Neil Probst, Timothy Little, Virginia Lee, and Marion County Sherfif Frank Anderson (collectively, “Defendants”), are responsible for managing Jail II. Id. In their Complaint, Plaintiffs assert a number of claims against Defendants, all of which attack the conditions at Jail II. Id. This matter is before the Court after an evident iary hearing for a decision on Defendants’ affirmative defense that Plaintiffs failed to exhaust thei r administrative remedies before filing the underlying lawsuit.

I. STANDARD Plaintiffs’ constitutional and federal claimsare subject to the exhaustion requirement set forth in the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997, as follows: No action shall be brought with respec t to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). On Feburary 2, 2009, Magistrate JudgeLynch stayed discovery and briefing on Plaintiffs’ Motion to Certify Class (Dkt. No. 57) until the Court enters judgment on Defendants’ exhaustion def ense. As to thei r affirmative defense, it is Defendants’ burden to establish that adm inistrative remedies were available to Plaintiffs and that the Plaintiffs failed to exhaust those administrative remedies. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005). “For a pr isoner to exhaust his remedies within the meaning of § 1997e(a), he must file complaints and appeals inthe place, and at the time, the prison’s administrative rules require.” Burrell v. Powers, 431 F.3d 282, 285 (7thCir. 2005) (internal quotation marks omitted). In oht er words, exhaustion must occurbefore Plaintiffs filed their suit. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). While the Seventh Circuit has not explicitly defined what constitutes “availability,” it has cited with approval the Second Circuit’s objective test, “under which the court looks at whether ‘a similarly sit uated individual of ordinary firmness would have deemed the grievance procedures to be available.’” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (quoting Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004)). “[W]hen prison officials fail to provide inmates with forms neces sary to file an administrative grievance, administrative remedies are not available.” Kaba, 458 F.3d at 684. Similarly,
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[i]f prison officials prevent an inmatefrom exhausting administrative remedies by ignoring properly filed grievances orby impeding the use of the grievance system through actions such as withholding necessary forms, destroying inmate submissions, or announci ng additional steps not mandated by regulation or rule, those remedies are not ‘available’ to the prisoner and he has not forfeited his ability to file suit.
Smith v. Buss, No. 09-1980, 2010 WL 457235, at *1 (7th Cir. Jan. 29, 2010) (citing Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)).
In Pavey, the Seventh Circuit heldthat if raised, courtsmust resolve the exhaustion
issue before merits discovery by employing a three-step analysis. 544 F.3d at 742.
(1) The district judge conducts a heairng on exhaustion and permits whatever discovery relating to exhaus tion he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, the judge will then determine whether (a) the plaintiff has failed to exhaust his administrative remedies, and so he must go back and exhaust; (b) or, although he has no unex hausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies , the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made bythe district judgein determining that the prisoner had exhausted his administrative remedies. Id.
With the foregoing standards in mind, the Court held an evidentiary hearing on this
matter to determine whether Plaintiffsexhausted their administrative remedies. See Pavey,
544 F.3d at 742 (holding that courts, not juries, should be the triers of fact on the issue of
whether a prisoner/plaintiff exhausted his administrative remedies). The Court now issues
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its opinion. Any factual statement or finding more appropriately considered a conclusion of law shall be so deemed, and vice versa.
II. FINDINGS OF FACT A. DEFENDANTS’ PROCEDURE FOR FILING COMPLAINTS Under Defendants’ written policy for operating Jail II, inmates are supposed to receive a handbook upon intake (a “Jaill II handbook”), which describes the procedure for filing complaints. Tr. at 15-16; Def.’s Exs. 9, 102. An inmate can begin the procedure for filing a complaint by requesting an informal resolution form from any Jail II staff member. Tr. at 8. Specifically, an inmate can request an informal resolution form from a unit manager, who is responsible for overseeing the operations associat ed with a floor of inmates; a case counselor, who is responsible for addressing inmate needs as they arise; a correctional counselor, who is responsible fo r maintaining sanitation of the floor and ensuring that inmate personal hygiene and clohting needs are met; or a correctional officer, who is responsible for maintaining the safety and security of the floor. Tr. at 8-10; Def.’s Ex. 100. Inmates can also request an info rmal resolution form from any other Jail II personnel. Tr. at 11. In addition, under Defendants’ policy for operating Jail II, after an inmate requests and completes an informal resolution form, he places it in a designated reciprocal. Tr. at 11. The grievance coordinator checks the reciprocal Monday through Friday, collects any informal resolution forms, and distributes themto the department head, a unit- or floor-level Jail II personnel who has the most familiarity with the sorts of issues about which inmates
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typically complain. Tr. at11-12. That personwill then have a meeting with the inmate who filed the informal resolution form to address the issue that was raised. Tr. at 12. If the inmate is not satisfied that the issue hasbeen resolved, he may request a formal grievance form from any Jail II personnel. Id. If an inmate completes a formal grievance form, he places it in a designated reciprocal for the grievance coordinator to collect. Tr. at 13. The complaint is then investigated by the grievance coordinator to determine the outcome. Tr. at 14. If the inmate is not satisfied with the grievance coordinat or’s decision, he may appeal the decision to the warden, who makes the final decision on appeal. Tr. at 15; Def.’s Ex. 101.

Although the Court finds thatDefendants established the above procedure for filing

complaints, the Court also finds that at a ll relevant times associated with Plaintiffs’

Complaint, there was no reliable system in place at Jail II for recording the det

ails

associated with the filing and resolution of inmatecomplaints. Tr. at 55-56, 60-61, 67, 69.

B. PLAINTIFF, RANDY CARR In January 2007, Carr was first incarcerated in Jail II. Tr. at 74. Upon intake, he was held in a small jail cell with approx imately twenty other detainees for approximately eighteen hours. Tr. at 75. Carrasked for a “grievance” to complain about these conditions. Id. In February 2008, Carr was incarcerated in Jail II for the second time. Tr. at 74. Again, he asked for a “ grievance” to complain about being held in a small jail cell with several other detainees for an extended period of time.Tr. at 76. On both occasions, Defendants’ failed to respond to Carr’s request for a “grievance.” Tr. at 75-76.
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During his 2007 incarceration, Carr also attempted to complain about not receiving proper dosages of his blood pressure medicatoin and about not receivni g medical attention for a twisted ankle. Tr. at 79. Both times, Defendants did not respond to his requests for a “grievance.” Tr. at 80. Because Carr ddi not read the Jail II handbook that he was issued during intake, it was only after filing this lawsuit that Carr learned that he must request in informal resolution form, not a “grievance,” in order to raise a complaint to which a Jail II personnel will respond. Id.
C. PLAINTIFF, TIMOTHY-PATRICK TREACY In June 2007, Treacy was incarcerated in Jail II. Tr. at 91. He ddi not receive a Jail II handbook upon intake. Tr. at 92-94. After this lawsuit was filed, Treacy acquired a Jail II handbook from a departing inmate. Tr. at 92, 94-95. During his incarceration at Jail II, he requested a “grievance” to complain about being exposed to raw sewage. Tr. at 96. He managed to receive a formal grievance form for m a nighttime guard. Tr. at 97. Treacy wrote a lengthy complaint and returned the completed formal grievance form to the same nighttime guard. Tr. at 96. Treacy also completed formal grievance forms on two other occasions. Tr. at 98. Treacy did not ask for an informal resolution form for any of these three complaints because he had not yet been informed by any Jail II personnel that such a form existed. Tr. at 103. After receivi ng the three formal grievance forms that Treacy submitted, a Jail II personnel returned the formal grievance forms to Treacy and informed him that he needed to complete an informal re solution form before submitting a formal
6

grievance form. Tr. at 110-11. Thereafter, Treacy did not submit informal resolutions for any of these three complaints. Tr. at 103.
Treacy also completed and submitted two informal resolution forms about issues unrelated to his previous three complaints. Pls.’ Exs. 53, 54. After receiving responses from unidentified Jail II personnel, Treacy did not further pursue either of the complaints raised in these informal resolution forms. Id.; Tr. at 109.
D. PLAINTIFF, ALAN KRESS In June 2007, Kress was incarcerated in Jail II.Tr. at 114. He ddi not receive a Jail II handbook upon intake, but received one after this lawsuit was filed. Tr. at 115, 123-24. In February 2007, Kress attempted to complain about not receivinghis mail until one month after it had been sent to him.Tr. at 116-17. He requestedand received a “grievance” form from an unidentified Jail II personnel. Tr. at 117. He completed and submitted the “grievance” form and did not receive a response from any Jail II personnel. Tr. at 117-18. During his inc arceration, Kress also a ttempted to complain about not receiving proper dosages of his medications. Tr. at 119.He informed a Jail II personnel of his desire to file a “grievance,” and was told that it was an issue that he could not seek to remedy by filing a “grievance.” Tr. at 120. Lastly, in March of 2007, Kress filed an informal resolution form to complain about not receiving his medications during a four week stretch in February and March of 2007. Tr. at 120. Kress Dep. Ex. 47. The record does not refl ect whether Kress specifically
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asked for an informal resolution form or whet her he received an informal resolution form after requesting a “grievance.” Two days after filing the informal resolution form, a Jail II medical department personnel informed Kress in a letter that his medication had been out of stock during the time period about which he complained of in the informal resolution form. Kress Dep. Ex. 48. Kress was satisfied that the issue was resolved. Tr. at 127.
E. PLAINTIFFS, BILLY FORD AND ERIC STAGGS Ford and Staggs did not appear at the hearing on this matter. Tr. at 26, 133-34.
IV. CONCLUSIONS OF LAW A. WHETHER THE PLAINTIFFS EXHAUSTED THEIR ADMINISTRATIVE REMEDIES
With respect to Carr’s complaints, regardel ss of the terminology used, Carr informed Defendants that he wished to submit complaints, and Defendants withheld the forms that were necessary for Carr to complete and s ubmit his complaint s in accordance with Defendants’ procedure for filing complaints. In the Court’s opinion, a person similarly situated to Carr would not conclude that Defendants’ procedure for filing complaints was available to him or her. Accordingly, the Court concludes that Defendants have not established, as is their burden, that administrative remedies were available to Carr, which he failed to exhaust. See Kaba, 458 F.3d at 684 ( “[W]hen prison officials fail to provide inmates with forms necessary to file an administrative grievance, administrative remedies are not available.”). Therefore, as to Defendants’ affirmative defense that Plaintiffs failed
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to exhaust their administrative remedies, the Court finds in favor of Carr and against the Defendants with respect to all of Carr’s claims that are subject to the PLRA’s exhaustion requirement.
With respect to Treacy’s first three co mplaints, the Defendants failed to timely provide Treacy with any information regardingDefendants’ procedure for filing complaints at Jail II. However, Treacy managed to obtai n, complete, and submit formal grievance forms, which Defendants responded to by returning the completed formal grievance forms to Treacy with ins tructions that he first needed to complete and file informal resolution forms. Treacy did not further pursue these complaints through the infor mal resolution process, and Defendants did not inhibit his ability to do so in any way.
With respect to the unrelated complaints that Treacy raised through the in formal resolution process, Treacy didnot pursue these matters past the informal resolution stage, and Defendants did not inhibit his ability to furtherpursue these complaints in any way. In the Court’s opinion, a person similarly situated to Treacy would conclude that Defendants’ procedure for filing complaints was a vailable to him or her. Accordingly, the Court concludes that with r espect to all of hi s complaints, Defendants have established that administrative remedies were available to Treacy, which he failed to exhaust, and that his failure to do so was his own af ult. Therefore, the Court findsin favor of the Defendants and against Treacy with respect t o all of Treacy’s claims that are subject to the PLRA’s exhaustion requirement.
With respect to Kress’ first complaint, regardless of the terminology used, Kress completed and submitted a complaint to Defendants, and the Defendants failed to respond.
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With respect to Kress’ second complaint, Kress was informed that the Defendants would not consider the issue about which he compla ined. In the Cour t’s opinion, a person similarly situated to Krress would not conclude that Defendants’ administrative procedure for filing complaints was available to him or he,r despite the fact thatKress’ third complaint was answered to his satisfaction. Accordingly,with respect to Kress’ complaints, the Court concludes that Defendants have not proven t hat administrative remedies were available to Kress, which he failed to exhaust.See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (holding that “administr ative remedies are exhausted when prison officials fail t o respond to inmate grievances . . . “).
Ford did not appear at the hearing on this matter and Defendants objected to the admission of his deposition testimony. Tr. at 133-34. The Court sustained the objection and, therefore, there is no ev idence before the Court as to whether Ford exhausted his administrative remedies before filing the underlying lawsuit. Id. Similarly, Staggs did not appear at the hearing on this matter, and no evidence has been pr esented to the Court regarding Staggs alleged failure to exhaust his administrative remedies. Tr. at 26.
With respect to Ford’s and Staggs’ claimsthat are subject to the PLRA’s exhaustion requirement, in the Court’s opinion, this case took an unusual procedural turn, whic h perhaps left the parties at a loss as to how to proceed. From the Court’s research, it appears that the exhaustion issue is typica lly briefed through a motion for s ummary judgment before the Court holds a Pavey hearing to resolve factual disputes. See, e.g., Peterson v. Miami Corr. Facility, No. 3:07-cv-397, 2009 WL 523117, at *2 (N.D. Ind. Feb. 27, 2009) (Lozano, J.) (“If the court cannot resolve the questionbased on the affidavits and
10

documentary evidence, it must conduct a hearing toresolve any disputed issues of material fact.”). However, in this case, the parties only submitted pretrial memoranda that did not reference evidentiary designations. The Court is aware that it did not instruct the parties to do otherwise.
The implication from liti gating the exhaustion issue solely through an evidentiary hearing is that Defendants had the burden to present evidence at the hear ing, which establishes that Plaintiffs failed to exhaust their administrative remedies with respect to each of the claims that Plaintiffs alleged in their Complaint. At the hearing on this matter, it became evident to the Courtthat, for purposes of Plaintiffs’ claims, there was no reliable system in place at Jail II for recording the details associated with the filing and resolution of inmate complaints. Accordingly, Defendants could not satisfy their burden of proof with respect to Ford or Staggs. C.f. Peterson, 2009 WL 523117, at *2 (concluding that defendants met their initial obligation under Fed. R. Civ. P. 56 because, in part, the correctional facility’s records did not contain a grievance filed by the plaintiff between the relevant dates). Therefore, the Court finds in favor of Ford and Staggs and against the Defendants with respect to all of Ford’s and Staggs’ claims that are subject to the PLRA’s exhaustion requirement.
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B. WHETHER THE PLAINTIFFS SHOULD BE GIVEN ANOTHER CHANCE TO EXHAUST THEIR ADMINISTRATIVE REMEDIES
The Court now must consider whether Carr, Kress, Ford, and Staggs must be given another chance to exhaust the procedure for filing complaints at Jail II. Pavey, 544 F.3d at 742. Ford is no longer an inmate at Ja il II and, therefore, the procedur e for filing complaints at Jail II is no longer available to him. Accordingly, the Court concludes that Ford may proceed to lit igate all of his claims that are subject to the PLRA’s exhaustion requirement. With respect toCarr, Kress, and Staggs, althoughthey are still inmates at Jail II, the Court concludes that the Defendants hav e failed to respond to several of Carr’s, Kress’, and Staggs’ requests to file complaints and have otherwise inhibited their ability to file meaningful complaints. In the Court’s opinion, if the Plaintiffs were sent back to Jail II, they would be given the proverbial “runaround”that the Seventh Circuit alluded to inPavey. 544 F.3d at 742. Accordingly, the Court concludes that Carr, Kress, and Staggs may also proceed to litigate all of theirclaims that are subject to ht e PLRA’s exhaustion requirement.
V. CONCLUSION The stay on discovery and br iefing in this case (Dkt. No. 57) is LIFTED. A telephonic status conference is set before Magistrate Judge Lynch on Wednesday, July 21, 2010, at 10:30 a.m. Counsel shall call 317-229-3630. The parties shall confer and file a proposed Case Management Plan by Friday, July 16, 2010 , which they shall be prepared to discuss at the statusconference. The parties shall proceed in accordance with the foregoing findings of facts and conclusions of law.
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In addition, Defendants’ motion to admit the testimony that was given by Amy Shovan at the hearing held on Plaintiffs’ Moti on for Rule to Show Cause As to Why Defendant CCA and Warden Jeff Conway ShouldNot be Held in Contempt and Sanctioned for Retaliation Against Named Plaintiffs (Dkt. No. 12) is DENIED AS MOOT. The details surrounding the termination of Amy Shovan’s employment at Jail II did not factor into the Court’s decision, and the admission of her entire testimony without referencing any particular portion would do little to serve the purpose of a Pavey hearing. See Ducey v. Flagg, No. 08-cv-0691, 2009 WL 3065045, at *4 (S.D. Ill. Sept. 23, 2009) (Reagan, J.) (“The determination whether Plaintiff exhausted his administrative remedies . . . boils down to a question of credibility.”).
IT IS SO ORDERED THIS 2nd day of July, 2010.

Distribution attached.

LAR__R_Y__J_. _M_c_K_I_N_N_E__Y_, _J_U_D_G__E__________ UniLteAdRSRtYatJe.sMDcisKtIrNicNt CEoYu, rJtUDGE SouSUtonhuietterhndeDrSnitsaDttreiiscsttrDoicfitsIotnrfdicIintadCniaoaunrat

13

Distribution to: William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com
Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com
Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com
Anthony W. Overholt FROST BROWN TODD LLC aoverholt@fbtlaw.com
Kenneth T. Roberts ROBERTS & BISHOP ktrobatty@aol.com
Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
Marc Pe-Caine Sultzer OFFICE OF CORPORATION COUNSEL msultzer@indygov.org
14

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS and RANDY CARR, on their )

own behalf and on behalf of a class of

)

those similarly situated, and BILLY FORD, )

on his own behalf.

)

Plaintiffs,

)

)

vs.

)

)

CCA OF TENNESSEE, LLC d/b/a

)

CORRECTIONS CORPORATION OF

)

AMERICA, WARDEN JEFF CONWAY, )

NEIL PROBST, TIMOTHY LITTLE,

)

VIRGINIA LEE and MARION COUNTY )

SHERIFF FRANK ANDERSON,

)

Defendants.

)

1:08-cv-00431-LJM-DML

ORDER ON PLAINTIFFS’ MOTION FOR THE ENTRY OF AN INJUNCTION This matter comes before the Court on plai ntiffs’, Alan Kress (“Kress”), Billy Ford
(“Ford”), Eric Staggs ( “Staggs”)1 and Randy Carr (“Carr”) (collectively, the “Plaintiffs”), Motion for the Entry of an Injunction on t he Issue of Grievances and to Set Dates Regarding the Filing of a Fee Petition (the “Plaintiffs’ Motion”). Dkt. No. 92.

I. BACKGROUND Plaintiffs filed their Amended Complain t against defendants, CCA of Tennessee, LLC d/b/a Corrections Corporation of America, Warden Jeff Conway, Neil Probst, Timothy Little, Virginia Lee, and Marion County Sher iff Frank Anderson (collectively, the “Defendants”) on April 28, 2010. Dkt. No. 17. On May 22, 2008, Defendants filed t heir
1 The Court notes that Staggs is no longer a plaintiff in this action.

Answer and Aff irmative Defenses to Plai ntiffs’ Amended Complaint. Dkt. No. 28. On February 2, 2009, the Court considered both parties’ proposed Case Management Plans and ordered the parties to brief the issue of whether Plaintiffs exhausted their available administrative remedies. Dkt. No. 57. Oncehte parties briefed the issue of exhaustion, the Court set the issue for an evidentiary hearing. Dkt. No. 73 (the “Scheduling Order”).
On March 18, 2010, the Court held an ev identiary hearing to determine whether Plaintiffs exhausted their administrative remedies before filing the underlying lawsuit in this Court, as required by the PrisonLitigation Reform Act (“PLRA”). See 42 U.S.C. §1997e(a) (“No action shall be brought with respect to pirson conditions under section 1983 . . . or any other Federal law, by a prisonerconfined in any jail, prison, orother correctional facility until such administrative remedies as are available are exhausted.”). The Court’s Scheduling Order explained to the parties that the pur pose of the hearing was “not to determine whether the Defendants’ grievance policy co mplies with Indiana law[;]” rather, the sole purpose of the hearing was to “consider evidence and argument[s] relating to the narrow questions of whether Plaintiffs’ exhaus ted their administrative remedies, and whether, if they failed to so exhaust, their failure was innocent.” Scheduling Order at 1-2.
The hearing was held according to the proecdures prescribed by the Seventh Circuit in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Exhaustion of administrative remedies is an affirmative defense, and, accordingly,the Defendants bore the burden of proof at the hearing. Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir. 2008). Following the hearing, the Court issued a Memorandum Opinion & Odrer on Defendants’ Affirmative Defense (the “Court’s Order”), ruling that Defendants did notmeet their burden of proof to establish both 1) that administrative remedies were available to plaintiffs Kress, Ford, Staggs, and Carr,
2

and 2) that these plaintiffs failed to exhaust their administrative remedies. Court’s Order at 8-11.
Following the Court’s ruling on the issue of exhaustion, Plaintiffs filed the pending Motion. Dkt. No. 92. The Defendants raise a num ber of issues in response to Plaintiffs’ Motion. However, the Court need consider just one, namel y, whether Plaintiffs have satisfied their burden of proof to obtain t he requested injunctive relief. The Court has considered the parties’ arguments and now rules as follows.
II. STANDARD “Before a court may award permanent injunctive relief, aparty must demonstrate (1) it has succeeded on the merits; (2) no adequate remedy at law exists; (3) the moving party will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is gr anted; and (5) the in junction will not harm the public interest.” Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998).
III. DISCUSSION A. SUCCESS ON THE MERITS The Plaintiffs do not make any argument uspporting their Motion for Injunctive Relief. Nor do Plaintiffs articulate or attempt to prove the elements necessary to support an injunction. Rather, they m erely assert that the “Court entered an order finding that the grievance process was not available to Plaintiffs Alan Kress, Billy Ford, Eric Stagg s and
3

Randy Carr [and as a result] the Plaintiffs ar e entitled to an injunction as to the issue of grievances. . . .” Plaintiffs’ Motion at ¶¶ 3-4 (emphasis in original). In short, the Plaintiffs rely solely on the Court’s Order as a basis for an injunction.
As previously stated, the Court’s Scheduling Order explained to the parties that the purpose of the Pavey hearing was “not to determine w hether the Defendants’ grievance policy complies with Indiana law[;]”rather, the sole purpose of the hearing was to “consider evidence and argument[s] relating to the narrowquestions of whether Plaintiffs’ exhausted their administrative remedies, and whether, if they failed to so exhaust, t heir failure was innocent.” Scheduling Order at 1-2. After considering the evidence, the Court found that the Defendants did not prove thatplaintiffs Kress, Ford, Staggs, and Carr failed to exhaust available, administrative remedies. See Court’s Order. Contrary toPlaintiffs’ assertion, the Court did not conclude that Plaintiffs met their burden of proof on any claim in t heir Amended Complaint. Pavey, 544 F.3d at 742 (“[A]ny finding ht at the judge makes, relating to exhaustion, that might affect the merits may be reexamined by the jury if - and only after - the prisoner overcomes the exhaustion defense and the case proceeds to the merits.”). Accordingly, Plaintiffs’ reliance on the Cour t’s Order is misplaced because the Court’s Order only resolved the issue of whether Plaintiffs’ exhausted all available administrative remedies - an affirmativ e defense - and did not resolve any of Plaintiffs’ claims on the merits. At this stage, Plainitffs have not succeeded on the merits of any of their claims and, therefore, have not shown the first element necessary for an award of injunctive relief.
Furthermore, Plaintiffs also fail to demonstrate any of the other elements required for an award of injunctive relief. Because the Palintiffs rely solely on the Court’s Order, the only information which could support an award of injunctive relief mu st be found therein.
4

No statement in the Court’s Order in dicates that Plaintiffs will suffer irreparable harm absent an injunction, that an injunction will not harm the publicinterest, or that no adequate remedy at law exists. Accor dingly, Plaintiffs have not shown that they are entitled to injunctive relief as to any claim against Defendants.
B. PLAINTIFFS’ CLAIMS UNDER THE PLRA AND INDIANA JAIL STANDARDS “Jurisdiction is the power to declare la w, and without it the f ederal courts cannot
proceed.” Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir . 2005) (internal quotation marks and citations omitted). “Accordingly, not only may the federal courts police subject matter jurisdiction sua sponte, they must. Hay v. Indiana State Bd. Of Tax Com ’rs, 312 F.3d 876, 879 (7th Cir. 2002).
Defendants argue in their response to Plaintiffs’ Motion that neither the PLRA nor the grievance requirements in the Indiana Jail Standards (the “Standards”), found at 210 Ind. Admin. Code § 3-1-15(h), confer a private rightof action on inmates. See Defs. Resp. at 2-7; see also Tyson v. Grant County Sheriff, No. 1:07-CV-0010, 2007 WL 1395563, at *8-11 (N.D. Ind. May 9, 2007)(Lozano, J.) (concluding that the Court lacked subject matter jurisdiction over plaintiff’s claim arising from an alleged vi olation of certain statutes and regulations where no private cause of acti on existed under the st atutes and regulations cited by plaintiff).
The PLRA explicitly prohibitsa private right of action: “Thefailure of a State to adopt or adhere to an administrative grievance proc edure shall not constitute t he basis for an action under section 1997a or 1997c ofthis title.” 42 U.S.C § 1997e(b). Accordingly, there is no need to belabor this issue, and the Cour t concludes that it lacks subject matter jurisdiction over Plaintiffs’ claim that the Defendants violated the PLRA.
5

Next, with respect to the Standards, “as a general rule, a state's administr ative regulations do not provide the source of an implied cause of action for damages against a local government. Rather, would-be plainti ffs must look to the statute to determine whether an express or implied cause of action is permitted.” Malone v. Becher, No. NA 01101-C H/H, 2003 WL 22080737, at *20 (S.D. Ind. Aug. 29, 2003) (Hamilton, J.); see also generally Tyson v. Grant County Sheriff, No. 1:07-CV-0010, 2007 WL 1395563, at *8-11 (N.D. Ind. May 9, 2007) (Lozano, J.). In I ndiana, “when legislation expressly provides a particular remedy or remedies, courts s hould not expand the cover age of the statute to subsume other remedies.” Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind.App. 1991). Stated otherwise, “when a statute limit s a thing to be done in a particular mode, it includes the negative of any other mode.” National R.R. Passenger Corp. V. National Ass’ n of R.R. Passengers, 414 U.S. 453, 459 (1974).
The courts in Malone and Tyson analyzed the Standards and the statute under which the Standards were promulgated and found that Indiana’s Gener al Assembly provided a remedy for a violat ion of the Standards - but not a private right of action for inmates. Malone, 2003 WL 22080737, at *19-20; Tyson, 2007 WL 1395563, at *8-11. Specifically, the remedy provided by Indiana’s General Assembly is that “the sheriff [may] bring an action in the circuit court . . . for appropriate mandatoryor injunctive relief[,]” after the Department of Correction investigates and notifies the jail of the violation. Ind. Code § 11-12-4-2. The Court agrees with the Malone and Tyson courts that the Indiana General Assembly contemplated a specific remedy forpotential violations of the Standards and did not intend to provide inmates with a private right of action toenforce the grievance process requirement in the Standards. Cf. Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 510 (Ind.
6

2005) (“[N]one of [Indiana’s] prison discipline statutes cited conf er subject matter jurisdiction over claims challenging . . . prison disciplinary actions.”); Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind. App. 2007) (applying the Indiana Supreme Court’s decision in Blanck broadly to other claims under the Indiana Jail Standards).
The Plaintiffs argue that the Defendants’ grievance process should not be above judicial review or Defendants “will have c arte blanche to simply deny access to their grievance process.” Plaintiffs’ Reply at 6. Plaintiffs’ fear is unwarranted because if a jail does not make a grievance proces s available to inmates, the PLRA’s exhaustion requirement would be satisfied and litigation on themerits could proceed. See Pavey, 544 F.3d at 742. That is exactly what happened in this case.
Accordingly, since no private cause of action exists under either the PLRA or the Indiana Jail Standards, this Court lacks subject matter jurisdiction to further consider the Plaintiffs’ claims that Defendants violated those laws.
7

IV. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for the Entry of an Inj unction on the Issue of Grievances and to set Dates Regarding the Filing of a Fee Petition (Dkt. No. 92) is DENIED. In addition, Counts Five, Six, and Fi fteen of Plaintiffs’ Amended Complaint, alleging that Defendants violated the grievance processes in the PLRA and Indiana Jail Standards, are DISMISSED. IT IS SO ORDERED this 16th day of November, 2010.

Distribution attached.

________________________________ LALRARRYRJY. JM. cMKcINKINNENYE,YJ,UJDUGDEGE UnUitneidteSdtaStteasteDsisDtrisictrticCtoCuorturt SoSuothuethrnerDnisDtrisictrticotf oInf dIniadniaana

8

Distribution to:
William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com
Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov
Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com
Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com
Anthony W. Overholt FROST BROWN TODD LLC aoverholt@fbtlaw.com
Kenneth T. Roberts ROBERTS & BISHOP ktrjustice@aol.com
Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
Marc Pe-Caine Sultzer OFFICE OF CORPORATION COUNSEL msultzer@indygov.org
9

 
 Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 1 of 16 PageID #: 899

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS and RANDY CARR, )

on their own behalf and on behalf

)

of a class of those similarly situated, )

)

Plaintiffs,

)

vs.

)

)

CCA OF TENNESSEE, LLC,

)

MARION COUNTY SHERIFF FRANK )

ANDERSON, VIRGINIA LEE,

)

TIMOTHY LITTLE, JEFF CONWAY, )

and NEIL PROBST,

)

)

Defendants.

)

NO. 1:08-cv-00431-LJM-DML

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

This matter is before the Court on plaintiffs’, Alan Kress (“Kress”) and Randy Carr

(“Carr”) (collectively, “Plaintiffs”), Motion for Class Certification (Dkt. No. 29). Plaintiffs filed

suit in this Court against defendants—CCA of Tennessee, LLC (“CCA”), Marion County

Sheriff Frank Anderson (the “Sheriff”), and CCAemployees Virginia Lee, Tmi othy Little, Jeff

Conway, and Neil Probst (collectively, the C“ CA Employee Defendants”) (CCA, the Sheriff,

and the CCA Employees, collectively, “Def endants”)—challenging various conditions at

Marion County Jail II (“Jail II”). Dkt. No. 17. The Court has considered the parties’

submissions and rules as follows.

I. BACKGROUND CCA is a private company s pecializing in running correctional facilities under contract with local law enforcement agencies. Dkt. No. 27 at 4. Under contract with the Marion County Sheriff’s Department (“Marion Counyt”), CCA operates Jail II, located at 730

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 2 of 16 PageID #: 900

East Washington Street, Indianapolis, Indiana. Id. The CCA Employ ee Defendants all

work for CCA at Jail II. Dkt. No. 28 at 3. Virginia Lee is a unit manager at Jail II. Id.

Timothy Little is the health services administrator at Jail II. Id. Jeff Conway is the warden

of Jail 2. Id. Neil Probst is a doctor providing medical services to Jail II inmates. Id. As

part of its contract with CCA and pursuant to state and federal law, Marion Count y

oversees operation of Jail II. Dkt. No. 27 at 7.

In April 2008, when this suit was filed, Plaintiffs1 were incarcerated at Jail II awaiting

trial. Dkt. No. 27 at 2. During their time at Jail II, Plaintiffs allege that Defendants

committed a number of violations of state and federal law in areas such as inmate mail

policies, availability and handling of g rievances,2 medical care, and privacy of medical

information. See generally Dkt. No. 17. In addition, Plaintfifs contend that the Sheriff failed

to oversee CCA’s operations properly, in violaiton of his obligationsunder state and federal

law. Id. Plaintiffs contend that Defendants’ violations entitle them to relief under 42 U.S.C.

§ 1983, as well as provisions of the Indiana Administrative Code and other statutes. Id. at

2, 12–17.

On June 12, 2008, Plaintiffs filed a Motion for Class Certificat

ion, seeking

certification of a class definedas “any and all persons currently, or who will be in the future,

1 At the time the Amended Complaint was filed, five inmates sought designation as class representatives. See Dkt. No. 17. Since that time, three inmates have been withdrawn from consideration as class representatives. Eric Staggs and Billy Ford withdrew as class representatives by providing notice to this Court. See Dkt. Nos. 97, 102. Timothy-Patrick Treacy was dismissed as a plaintiff for failure to exhaust administrative remedies. Dkt. No. 85 at 9. Therefore, only Alan Kress and Randy Carr remain as potential class representatives and named plaintiffs. See Dkt. No. 104.
2 The Court notes that in an Order of this Court on November 16, 2010, the Court dismissed Plaintiffs’ claims relating to procedures for grievances for lack of subject matter jurisdiction on the ground that neither the Prison Reform Litigation Act nor the Indiana Jail Standards grant a private cause of action. Dkt. No. 109 at 7. Because these claims have been dismissed, the Court will not consider issues with grievance procedures in evaluating the Motion for Class Certification.
2

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 3 of 16 PageID #: 901
confined in the Jail #2 facility.” Dkt. No. 30 at2. On February 2,2009, following a request by Defendants, briefing on class certification was stayed to allow the Court first to decide whether Plaintiffs had exhausted their administrative remedies. Dkt. No. 57 at 3. On July 2, 2010, the Court lifted the stay, finding t hat Plaintiffs had exhausted administrative remedies such that their claims could proceed. Dkt. No. 85 at 12.
Following the filing of this suit and the Motoi n for Class Certification, Plaintiffs were transferred from Jail II to other facilities, and neither has been returned to Jail II. Dkt. No. 106-1 at 2–3. Plaintiff Carr was transferred on August 5, 2008. Id. at 3. Plaintiff Kress was transferred on August 19, 2008. Id. at 2.
The Court adds additional facts below as needed.
II. DISCUSSION A. MOOTNESS Before proceeding to a discus sion of w hether Plaintiffs meet the Rule 23 requirements for class certification, the Court will address Defendants’ mootness argument. Defendants contend that, because Plaintiffs areno longer incarcerated in Jail II, their claims for injunctive relief are moot and t hey cannot serve as the class representatives for an action seeking said relief. Dkt. No. 106 at 2. Pal intiffs counter that, at the time the Motion for Class Certification was filed, Plainti ffs were incarcerated in Jail II, and Defendants’ dilatory tactics should not render Plaintiffs’ cl aims moot for purposes of serving as class representatives. Dkt. No. 107 at 3–5. A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S.
3

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 4 of 16 PageID #: 902
388, 396 (1980). Generally, if a plaintiff’s claims become moot prior to class certification, that plaintiff may no longer serve as the class represen tative. See Olson v. Brown, 594 F.3d 577, 580 (7th Cir. 2010). However, there is an exception to the mootness doctrine in class certification when a claim is “so ‘inherently transitory’ that it is uncertain that any member of the class would maintain a live controversy long enough for a judge to certify a class.” Id. (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)).
Defendants contend that, in order to fall underthe “inherently transitory” exception, Plaintiffs must demonstrate that their claimsare “capable of repetition, yet evading review.” See Dkt. No. 106 at 3–4. However, in Olson, the Seventh Circuit clarified that the “inherently transitory” exception is distinct from “capable of repetition, yet evading review.” See Olson, 594 F.3d at 583. For the “inherently trans itory” exception to apply, Plaintiffs must satisfy the “Gerstein test” and show that “(1) it is unecrtain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there will be a contsant class of persons sufferni g the deprivation complained of in the complaint.” Id. at 581.
Turning to the first element of the Gerstein test, the Court concludes that Plaintiffs have met its requirements. “ [T]he crux of the ‘inherently transitory’ exception is the uncertainty about the length of time a claim will remain alive.” Id. at 582. In determining whether a given length of time is sufficiently uncertain, theOlson Court distinguished cases in which “the named plaintiffs knew, from the outset, exactly how long their claims would remain alive but chose to wait to file for class certification until the claim was nearly moot or already moot.” Id. The Olson Court recognized that “the length of incarceration in a county jail generally cannot be determined at t he outset and is s ubject to a number of
4

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 5 of 16 PageID #: 903
unpredictable factors, thereby making it inherently transitory.” Id.; see also Richardson v. Monroe Cnty. Sheriff, No. 08-CV-174, 2008 WL 3084766, at 2* –*3 (S.D. Ind. Aug. 4, 2008) (Young, J.) (denying dismissal of class ac tion based on named plaintiff’s release from incarceration). In this case, Plaintiffs wereincarcerated at Jail II awaiting trial. The length of their incarceration was notdetermined, and it is undisputed that, at the time they filed for class certification, their claims were not moot.Therefore, the Court concludes that Plaintiffs meet the first element of the Gerstein test.
As for the second element of the Gerstein test, the Court concludes that Plaintiffs have shown that therewill be a constant class of personssuffering the deprivation at issue. Contrary to Defendants’ assertion, the “inher ently transitory” exception does not require Plaintiffs to show that they themselves ar e likely to be subjected to the complained-of procedures in the future. Id. at 583. Instead, Plaintiffs must show that “the claim is likely to recur with regard to the class.” Id. at 584. Assuming Plaintiffs’ allegations are true, the Court has little trouble concluding that the same violations are likely to occur with regard to other Jail II inmates, who are members of the proposed class.
In short, the Court concludes that Plaintiffs’ claims are “inherently transitory” under the Gerstein test and, ther efore, not mooted for the purpose of serving as class representatives. However, the Court noteshtat, even though Plaintiffs’ claims are not moot for purposes of serving as class representat ives, release from Jail II renders Plaintiffs’ individual claims moot. See Koger v. Bryan, 523 F.3d 789, 804 (7th Cir. 2008) (concluding that release from prison moot s prisoner’s individual claims for injunctive relief against prison). It is unquestioned that Plaintiffs areno longer incarcerated at Jail II, and, as such, their individual claims are moot. B ecause Plaintiffs’ claims for i njunctive relief in their
5

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 6 of 16 PageID #: 904
individual capacities are moot, those claims must be DISMISSED.
B. CLASS CERTIFICATION Certification of a class isgoverned by Federal Rule ofCivil Procedure 23 (“Rule 23”). The propriety of class certification does not depend on the outcome of the suit or on whether a party will prevail on the merits but whether the requri ements of Rule 23 are met. See Eisen v. Carlisle, 417 U.S. 156, 177–78 (1974); Chavez v. Ill. State Police, 251 F.3d 612, 620 (7th Cir. 2001). However, the Court is not required to accept the complaint’s factual allegations as true but, rather, may “make whatever factual and legal inquiries are necessary” to ensure compliance with Rule 23. Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 676 (7th Cir. 2001). The Court has “broad sdciretion to determine whether certification of a class-action lawsuit is appropriate.”Chavez, 251 F.3d at 629. The party seeking class certification bears the burden of proving that certification is appropriate. Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1977). To prevail on t heir Motion for Class Certific ation, Plaintiffs must propose a class definition that results inan identifiable class. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Having done so in this case , Plaintiffs next must satisfy the four requirements of Rule 23(a). See Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000); Mira v. Nuclear Measurements Corp., 107 F.3d 466, 475 (7th Cir. 1997). The prerequisites in Rule 23(a) are: (1) the class is so numerous that joinderof all members isimpracticable; (2) there are questions of law or fact co mmon to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the represent ative parties will fairly and adequately protect the interests of the class.
6

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 7 of 16 PageID #: 905
FED. R. CIV. P. 23(a). Once the Court determines that Plaintfifs have satisfied these prerequisites, then the
Court must determine whether they meet one or more of the requirements of Rule 23(b). See Williams, 204 F.3d at 760; Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993). Plaintiffs seek certification pursuant to Rule 23(b)(2) and, therefore, must demonstrate that Defendants “ha[ve] act ed or refused to act on grounds generally applicable to the class” so that final injunctiveor declaratory relief will be appropriate for the class as a whole. See FED. R. CIV. P. 23(b)(2). Failure to meet any of the requirements of Rule 23 precludes class certification. Harriston v. Chi. Trib. Co., 992 F.2d 697, 703 (7th Cir. 1993) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)). Even if class certification is granted, the Court may m odify its Order if subsequent developments demonstrate that certification is improper. See Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 160 (1982) (citing FED. R. CIV. P. 23(c)(1)).
1. RULE 23(a) REQUIREMENTS To proceed as a class action, Plaintiffsbear the burden of showing that the proposed class meets the four requirements under Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008) (citing FED. R. CIV. P. 23(a)). Here, Defendants chall enge only the typicalit y element of Rule 23(a). See Dkt. No. 106 at 12–13. As Plaintiffs propose a class including all current and future inmates at Jail II, the Court concludes that the numerosity element is satisfied. See FED. R. CIV. P. 23(a)(1). In addition, the Court concludes that Plaintiffs’ claims present common questions of law and fact to satisfy the comm onality requirement. See FED. R.
7

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 8 of 16 PageID #: 906

CIV. P. 23(a)(2). Thirdly, Plaintiffs and their counsel appear able to adequately represent

and protect the interests of the class as a whole without “antagoni stic or conflicting”

individual claims. See Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Finding

the other t hree Rule 23(a) r equirements present, the Court now turns to the typicality

element.

For purposes of class certification, typica lity requires that Plai ntiffs’ claims arise

“from the same event or practice or course ofconduct that gives riseto the claims of other

class members” and “are based on the same legal theory.” Oshana, 472 F.3d at 514.

Some factual variations may not defeat typicality, but the requirement is intended to ensure

that the named repr esentatives’ claims have “t he same essential characteristics as the

claims of the class at large.” Id. In short, typicality requires ht at “[a]ll members of the class

were subject to the same a llegedly unlawful practices.” De La Fuente v. Stokely-Van

Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). As one court has stated, typicality is

destroyed when “[t]here is a strong likelihood that each Plaintiff’s case would necessarily

be different.” Orr v. Elyea, No. 08-CV-2232, 2009 W L 3837553, at *5 (C.D. Ill. Nov. 16,

2009).

Plaintiffs assert twenty different counts against Defendants, each of which must be

examined for compliance with Rule 23(a)’s typicality requirement. See generally Dkt. No.

17. For ease of discussion, ht e Court will address Plaintiffs’ cal ims by category as follows:3

•

Counts One, Two, and Thirteen: the “Medical Care Counts.” Id. at ¶¶ 84–85,

98.

3 As this Court’s November 16, 2010 Order dismissed Counts Five, Six, and Fifteen—those counts related to handling administrative grievances—of Plaintiffs’ Amended Complaint for lack of subject matter jurisdiction, the Court will not evaluate these counts further. See Dkt. No. 109 at 5–7.
8

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 9 of 16 PageID #: 907

•

Counts Three, Four, and Fourteen: the “Unsafe Condition Counts.” Id. at ¶¶

86–87, 99.

•

Count Seven: the “Contract Count.” Id. at ¶ 91.

•

Counts Eight and Sixteen: the “Mail Counts.” Id. at ¶¶ 92, 101.

•

Counts Nine and Seventeen: the “Records Counts.” Id. at ¶¶ 93, 102.

•

Counts Ten and Eighteen: the “Privacy Counts.” Id. at ¶¶ 94–95, 103.

•

Counts Eleven and Nineteen: the “Reporting Counts.” Id. at ¶¶ 96, 104.

•

Counts Twelve and Twenty: the “Incentives Counts.” Id. at ¶¶ 97, 105.

a. THE MEDICAL CARE, MAIL, RECORDS, AND REPORTING COUNTS The Medical Care Counts allege inadequate medical care in violation of the Eighth and Fourteenth Amendments, as well as Ti tle 210, Section 3-1-11 of the Indiana Administrative Code. See id. at ¶¶ 84–85, 98. Claims of inadequate medical care by their nature require individual determinations, as the level of medical care required to comport with constitutional and statutory standar ds will vary depending o n each inmate’s circumstances, such as preexisting medical conditions. In examining prisoner claims regarding medical care, other courts have reached similar conclusions. See, e.g., Orr, 2009 WL 3837553, at *5 (concluding that claims of inadequate hepatitis treatment lacked typicality); Smith v. Sheriff of Cook Cnty,.No. 07-C-3659, 2008 WL 1995059, at *2–*3 (N.D. Ill. May 6, 2008) (same for claims of inadequat e dental care). The Court concludes that Plaintiffs have not shown the requisite typicality of the Medical Care Counts. The Mail Counts allege that Plaintiffshave been denied the right to receive and send personal and legal mail in violation of Title 210S, ection 3-1-16 of the Indiana Administrative
9

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 10 of 16 PageID #: 908
Code. Dk t. No. 17 ¶¶ 92, 101. Plaintiffs further allege that Jail II personnel have not followed internal CCA policies regarding the handling of mail. Id. The facts on the record indicate that rather than a systematic policy blocking the receipt and sending of mail, Plaintiffs complain of individual incident s of impr oper mail handling. Dkt. No. 106-2 at 12–13; Dkt. No. 106-3 at 9–13. Plaintiffs have not shown that these individual incidents resulted from policies or procedures applied to all Jail II inmates. Therefore, the C ourt concludes that the Mail Counts also fail Rule 23(a)’s typicality requirement.
The Records Counts allege that Plaintiffs were denied access to their requested medical records in violation of the Heal th Insurance Portability and Accountability Act (“HIPAA”) and Indiana Code Section 16-39-1-1. Dkt. No. 17 ¶¶ 93, 102. These Counts fail typicality for one simple reason: Plaintiffs have not shown that prospective plaintiffs have requested their medical records and had their requests denied.The broad class requested by Plaintiffs, including all present and future inmates at the Jail II facility, undoubtedly includes numerous inmates who never requested their medical records. Therefore, the Records Counts would require ni dividual fact-finding to determine which plaintiffs requested their medical records and had their requests denied. The Court concludes that Plaintiffs have not shown that the Records Counts are typical of their requested class as a whole.
The Reporting Counts allege that Jail II sta ff failed to report medical err ors “as required by Indiana law.” Id. at ¶¶ 96, 104. Once again, these claims by their nature require individual fact-finding. Just as theMedical Care Counts would require an individual determination of the medical care receivedby each inmate and its adequacy, the Reporting Counts would require an individualevaluation for each inmate asto whether a medical error occurred and was reported. The Court concludes that this fact-finding is too specific to
10

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 11 of 16 PageID #: 909
individual class members for the Reporting Counts to be typical across the class. In short, the Count concludes that the Medical Care, Mail, Records, and Reporting
Counts fail to meet Rule 23(a)’s typicality requirement. As such, these Counts cannot be certified for class action purposes. Additionally , as Plaintiffs’ individual claims are moot because they are no longer incarcerated at Jail II, the Court DISMISSES as moot these Counts in their entirety.
b. THE UNSAFE CONDITIONS, PRIVACY, AND INCENTIVES COUNTS Although the Court concludes that many of Plaintiffs’ claims fail to satisfy Rule 23(a)’s typicality requirement, some of Plaintiffs’ allegations are typical for the class as a whole. The Court now turns to address those allegations. The Unsafe Conditions Counts allege thatvarious conditions at Jail II, including the presence of mold and insect infestations,inadequate security staffing, and broken heating and air conditioning systems, amount to violations of Defendants’ obligations to provide a safe and humane facility under ht e Eighth and Fourteenth Amendments, as well as various provisions of the Indiana Administrative Code. Dkt. No. 17 ¶¶ 38–40, 86–87, 99. These allegations are such that they could be determined on a collective basis without the need for individual fact-finding for individual inmates. See De La F uente, 713 F.2d at 232. Therefore, the Court concludes that the Unsafe Conditions Counts are sufficiently typical. The Privacy Counts allege that Jail II’s intake policy, which has two prisoners in the room at a time during initial questioning about medical history, violates HIPAA’s medical privacy provisions. Id. at ¶¶ 94–95, 106. Rather than contending that this was an isolated incident, Plaintiffs contend that this policy applied to intake for all inmates. Therefore, the
11

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 12 of 16 PageID #: 910
question that must be determined for this claim—whether this policy did in fact exist—is the same for all inmates. The Court concludes, therefore, that the allegations of the Privacy Counts are sufficiently typical.
Lastly, the Incent ives Counts allege that CCA paid its administrators financial incentives to encourage them to treat fewer medical patients, decline to report medical errors, and generally report more favorable conditions than were in fact present at Jail II. Id. at ¶¶ 97, 105. Plaintiffs contendthat these incentives violate the Eighth and Fourteenth Amendments. Id. It is clear that these Counts wouldnot require individual fact-finding for each inmate. Rather, it focuses on the paym ents from CCA to its administrators, which result from facility-wide results as opposed toincidents with individual inmates. Therefore, the Court concludes that the Incentive Counts are sufficiently typical across the proposed class.
c. THE CONTRACT COUNT The Contract Count alleges that CCA breached third-party contractual duties owed to inmates. Dkt. No. 17 ¶ 91.To the extent thatthe Court must determine whether inmates are third-party beneficiaries to the contract between CCA and Marion County, this question is typical for all class members. However, it is not clear that the question of whether CCA breached duties owed to inmates under the cont ract would be typical, as that question would depend on the language of the contract and the alleged breaches at issue. In their briefing on the Motion for Class Ceritfication, Plaintiffs have given no further clarification on the contours of the Contract Claim and why class certification would be appropriate for it. See generally Dkt. Nos. 29, 107. Plaint iffs have the burden of demonstrating that class
12

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 13 of 16 PageID #: 911
certification is appropriate—see Trotter, 748 F.2d at 1184—and the Court concludes that Plaintiffs have not met that burden on the Contract Claim. Likethe other claims failing Rule 23(a)’s typicality analysis, Plaintiffs’ Contract Count must be DISMISSED.
2. RULE 23(b)(2) In addition to meeting all the requirements of Rule 23(a), Plaintiffs must show that they qualify under one ofthe three provisions of Rule 23(b).See Williams, 204 F.3d at 760. Plaintiffs contend that theyqualify under Rule 23(b)(2), underwhich they must demonstrate that Defendants “ha[ve] acted or refused to act on grounds generally applicable to the class” so that final in junctive or declaratory relief will be appropriate for the class as a whole. FED. R. CIV. P. 23(b)(2). The Seventh Circuit has taken Rule 23(b)(2) to require that class members’ claims are “cohesive andhomogeneous such that the case will not depend on adjudication of fact s particular to any subs et of the class nor require a remedy that differentiates materially among class members.” Lemon v. Int’l Union of Operating Eng’rs, 216 F.3d 577, 580 (7th Cir. 2000). The Court finds that the Counts satisfying Rule 23(a)’s requirements—the Unsafe Conditions, Privacy, and Incentives Counts—also satisfy Rule 23(b)(2). Actions seeking injunctive relief to prevent future alleged ill egal deprivations of civil rights are a “prime example” of a proper Rule 23(b)(2) class. Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1975). Injunctive or declaratory relief forthose Counts would be appropriate for the class as a whole and would not require indviidually differentiated remedies. Accord. Lemon, 216 F.2d at 520. Therefore, the Court concl udes that Plaintiffs’ requested class m ay be certified for those claims.
13

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 14 of 16 PageID #: 912
However, the Court notes that, among ot her remedies, Plaintiffs’ have requested punitive damages. See Dkt. No. 17 ¶¶ 114–15. Punitivedamages are not an appropriate remedy for a Rule 23(b)(2) class. See, e.g., Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 898 (7th Cir. 1999) (money damages are only permissible under Rule 23(b)(2) “when monetary relief is incidental to the equitable remedy”); see also Hubler Chevrolet, Inc. v. Gen. Motors Corp. , 193 F.R.D. 574, 580 (S.D. Ind. 2000) (Barker, C.J.). Plaintiffs specifically seek relief under Rule 23(b)(2). See Dkt. No. 17 ¶ 107;see also generally Dkt. Nos. 29, 107. As such, Plaintiffs may not pusrue claims for punitivedamages. Only claims based on injunctive or declaratory relief may proceed as a class action in this case.
3. CLASS DEFINITION As discussed above, Plaintiffs seek certification of a class including “any and all persons currently, or who will be in the future, confined in the Jail #2 facility.” Dkt. No. 17 ¶ 20. However, the Court has broad discretion to modify the class definition if necessary. See Harden v. Raffensperger, Hughes & Co., Inc., 933 F. Supp. 763, 769 n.5 (S.D. Ind. 1996) (McKinney, J.) (modification of class definitionsua sponte). The class definition may be modified any time prior toa decision on the merits. FED. R. CIV. P. 23(c)(1). At this time, the Court declines to modify Plaintiffs’ proposed class. However, Defendants may petition the Court for modification of the class def inition if subsequent evidence sugges ts that Plaintiffs’ proposed class is inappropriate.
14

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 15 of 16 PageID #: 913
III. CONCLUSION For the reasons set forth herein, Plaintiffs’ Motion for Class Certification (Dkt. No. 29) is GRANTED in part and DENIED in part. Class Certification is GRANTED as to Counts Three, Four, Ten, Twelve, Fourteen, Eighteen, and Twenty of Plaintfifs’ Amended Complaint. The Court will conditionally certify a class as follows: Any and all persons currently, or who willbe in the future, confined in the Jail #2 facility. Plaintiffs Alan Kress and Randy Carr are herebyCERTIFIED as class representatives, and Plaintiffs’ current counsel is hereby CERTIFIED as class counsel. Class Certification is DENIED as to all other Counts. Counts One, Two, Seven, Eight, Nine, Eleven, Thirteen, Sixteen, Seventeen, and Nineteen are DISMISSED in their entirety. Additionally, all of Plaintiffs’ clai ms in their indiv idual capacities under Counts Three, Four, Ten, Twelve, Fourteen, Eighteen, and Twenty are DISMISSED as moot.
IT IS SO ORDERED this 1st day of December 2010.

Distribution attached.

________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana
15

Case 1:08-cv-00431-LJM-DML Document 111 Filed 12/01/10 Page 16 of 16 PageID #: 914
Distribution to:
William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com
Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov
Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com
Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com
Anthony W. Overholt FROST BROWN TODD LLC aoverholt@fbtlaw.com
Kenneth T. Roberts ROBERTS & BISHOP ktrjustice@aol.com
Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
Marc Pe-Caine Sultzer OFFICE OF CORPORATION COUNSEL msultzer@indygov.org
16

 
 Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 1 of 7 PageID #: 962

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS and RANDY CARR,

)

on their own behalf and on behalf

)

of a class of those similarly situated, )

)

Plaintiffs,

)

)

vs.

)

)

CCA OF TENNESSEE, LLC,

)

MARION COUNTY SHERIFF FRANK )

ANDERSON, VIRGINIA LEE,

)

TIMOTHY LITTLE, JEFF CONWAY, )

and NEIL PROBST,

)

)

Defendants.

)

NO. 1:08-cv-00431-LJM-DML

ORDER ON PLAINTIFFS’ MOTION FOR RECONSIDERATION OF ORDER OF CLASS CERTIFICATION AS TO FACILITY-WIDE ORDER TO ELIMINATE THIRD
PILL CALL ROUND

Pending before the Court is plaintiffs ’, Alan Kress and Randy Carr on behalf of

themselves and others similarly situated (c

ollectively, “Plaintiffs”), Motion for

Reconsideration on Order of ClassCertification as to Facility-Wide Order to Eliminate Third

Pill Call Round (Dk t. No. 113) (“Motion to Rec onsider”). The Court has considered the

parties’ arguments and, for the reasons set fort h below, Plaintiffs’ Motion to Reconsider

(Dkt. No. 113) is DENIED.

I. BACKGROUND Defendant CCA of Tennessee, LLC (“CCA”) is a private company s pecializing in running correctional facilities under contract wiht local law enforcementagencies. Dkt. No. 111 at 1. CCA operates Marion County Jail II (“Jail II”) under contract with the Marion

Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 2 of 7 PageID #: 963
County Sheriff’s Department (“Marion County”). Id. Defendants Virginia Lee, Timothy Little
(“Mr. Little”), Jeff Conway, and Neil Probst (“D r. Probst”) (collectively, “Employee Defendants”) are employees of CCA who work at Jail II1. Id. at 2. For ease of discussion,
CCA, Marion County, and the Employee Def endants will be referred to collectively as “Defendants.” Plaintiffs are former inmates at Jail II.2 Id. at 3.
In their Complaint, Plaintiffs allege thatDefendants committed a number of voilations
of state and federal law in the operation of Jail II. Id. at 2. In April 2008, Plaintiffs filed a
motion seeking to serve as representatives for a class defined as “any and all persons
currently, or who will be in the future , confined in the Jail #2 facility.” Id. at 3. In a
November 29, 2010 Order (“Certification Order”), the Court certified Plaintiffs’ requested
class for Plaintiffs’ allegations of unsafe prison conditions, violations of the Health
Insurance Portability and Accountability Act (“HIPAA”) during the intake process, a nd
improper financial incentives for CCA administrators. See generally id. at 11–12, 15. The
Court denied class certification on Plaintiffs’remaining allegations and, because Plaintiffs’
transfer from Jail II rendered their individual claims moot, dismissed the remaining counts
of the Complaint in their entirety. Id. at 9–11, 15.
1 In their Reply, Plaintiffs request that the Court impose sanctions on Defendants because “Dr. Neil Probst and Administrator Timothy Little perjured themselves when asked about the elimination of [the] pill call round in depositions.” Dkt. No. 115 at 1. Although the Court takes perjury seriously and has the power to sanction a party who commits perjury—see Montano v. City of Chi., 535 F.3d 558, 563 (7th Cir. 2008)—the Court concludes that neither Dr. Probst nor Mr. Little perjured himself. Dr. Probst’s deposition testimony—given in Ellis v. CCA of Tennessee, LLC, No. 1:08-CV-254 (S.D. Ind. filed Feb. 26, 2008)—that the third pill call had not been eliminated is consistent with his statement at a hearing in this case that not all inmates had their prescriptions reduced from three to two times per day. Compare Dkt. No. 107-3 at 4, with Dkt. No. 115-1 at 2–3. Mr. Little’s testimony that the third pill call was not eliminated completely is also consistent. See Dkt. No. 2–3. In short, the Court concludes that Dr. Probst and Mr. Little did not commit perjury and, therefore, no sanction is appropriate.
2 On August 5, 2007, Plaintiff Carr was transferred from Jail II. Dkt. No. 111 at 3. Plaintiff Kress was transferred from Jail II fourteen days later. Id.
2

Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 3 of 7 PageID #: 964
On December 10, 2010, Plaintiffs filed the present Motion to Reconsider asking the Court to reconsider its decision to deny class certification and dismiss Counts One, Two, and Thirteen of the Complaint (the “Medical Care Counts”). See generally Dkt. No. 113. In the Medical Care Counts, Plaintiffs allegedthat Defendants’ decision to eliminate a third round of pill call in Jail II violated inmates’ constitutional rights under the Eighth and Fourteenth Amendments, as well as Title 210, Section 3-11- 1 of the Indiana Administrative Code.3 Dkt. No. 17 ¶¶ 84–85, 98. Plaintiffs do not challenge any other part s of the Certification Order.
The Court adds additional facts as necessary below.
II. STANDARD Rule 54(b) provides that: any order or other decision, howeverdesignated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liability. FED. R. CIV. P. 54(b). Plaint iffs have asked the Court to reconsider aspects of a prejudgment interlocutory decision. Such decisions may be reconsidered at any time. See In re 949 Erie St., Racine, Wis., 824 F.2d 538, 541 (7th Cir. 1987); Cameo Convalescent Ctr., Inc. v. Percy, 800 F.2d 108, 110 (7th Cir. 1986). Underthe “law of the case” doctrine, the Court may refuse to consider that which has already been decided. See Cameo
3 For purposes of a § 1983 suit, violations of the Indiana Administrative Code are examined under the federal constitutional framework. See Estate of Clark v. Harris, No. 2:03-CV-215, 2004 WL 2538644, at *3 (S.D. Ind. Oct. 19, 2004) (McKinney, C.J.); see also Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir. 1985); Noland v. Wheatley, 835 F. Supp. 476, 486 (N.D. Ind. 1993).
3

Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 4 of 7 PageID #: 965
Convalescent Ctr., 800 F.2d at 110. However, the C ourt has “the discretion to make a different determination of any matters thathave not been taken to judgment or determined on appeal.” Id. A motion to reconsider must be based on the need “to correct manifest errors of law or fact or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). “A ‘manifest error’ is not demonstrated by the disappointm ent of the losing party. It is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)).
III. DISCUSSION In the Certification Order, the Court denied class certification for the Medical Care Counts, concluding that the allegations underlying the Medical Care Counts failed to meet the typicality requirement necessary for cla ss certification under Federal Rule of Civil Procedure 23 (“Rule 23”). Dkt. No. 111 at 9. The Court stated: Claims of inadequate medical care by their nat ure require individual determinations, as the level of medi cal care required to comport with constitutional and statutory standards will vary depending on each inmate's circumstances, such as preexisting medical conditions. In examining prisoner claims regarding medic al care, ot her courts have reached similar conclusions. See, e.g., Orr [v. Elyea, No. 08-CV-2232], 2009 WL 3837553, at *5 [(C.D. Ill. Nov.16, 2009)] (concluding thatclaims of inadequate hepatitis treatment lacked typicality); Smith v. Sheriff of Cook Cnty. , No. 07-C3659,2008 WL 1995059, at *2–*3 (N.D. Ill. May 6, 2008) (same for claims of inadequate dental care). The Court concludes that Plaintiffs have not shown the requisite typicality of the Medical Care Counts. Id. In their Motion to Reconsider, Plaintiffs contend that because the Medical Care Counts involve a facility-wide policy of eliminating t he third pill call, all members of the class
4

Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 5 of 7 PageID #: 966
suffered the same violation and the named Plaintfifs’ claims are typical. Dkt. No. 113 at 1. Plaintiffs allege that cost cutting, rather than individual patient welfare, drove the decision to eliminate the third pill call. Id. at 2–3. Because individual circumstances were not taken into account in eliminating the third pill call, Plaintiffs argue, individual determinations will be unnecessary to adjudicate the claims. Id. at 4.
Plaintiffs’ argument fails to appreciate the nature of the legal claims underlying the Medical Care Counts. As one court has said, typicality under Rule 23 is destroyed when “[t]here is a strong likelihood that each Plaintiff’s case would necessarily be different.” Orr v. Elyea, No. 08-CV-2232, 2009 WL 3837553, at *5 (C .D. Ill. Nov. 16, 2009). Under the Eighth and Fourteenth Amendments, inadequate medical care of prisoners is a violation when prison officials display “deliberateni difference to serious medical needs of prisoners.” Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Even assuming that eliminationof the third pill call caused some injury to members of the requested class, whether the injury constitutes “deliberate indifference” is an individualized inquiry that requires an examination of the medical needs 4 of each prisoner and determine whether theelimination of the third pill call compromised a “serious medical need” of that prisoner. Accord. id. These necessary and individualized inquiries defeat typicality for Rule 23 pur poses, and t he Medical Care Counts are, therefore, inappropriate for class certification.5 See Orr, 2009 WL 3837553, at *5. Plaintiffs have not
4 Issues relevant to this examination would include the type and dosage of medication at issue, the prisoner’s overall health condition, possible efforts to adjust medication at other pill call opportunities, and other individual inquiries.
5 In contrast, Plaintiffs’ allegations that Jail II’s intake policy violates HIPAA’s privacy provisions provide an example of a policy that leads to typical claims. See Dkt. No. 111 at 11–12. If the policy at issue is proven, the resulting HIPAA violations occur for all prisoners subjected to the policy—their private
5

Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 6 of 7 PageID #: 967
shown a “manifest error” in the Certificat ion Order, and, therefore, their Motion to Reconsider must be DENIED. See Oto, 224 F.3d at 606.
IV. CONCLUSION For the reasons set forth herein, Plaintiffs’ Motion to Reconsider (Dkt. No. 113) is DENIED. IT IS SO ORDERED this 25th day of January 2011.
________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana
Distribution attached.
medical information is illegally made public. The individual contents of that medical information are irrelevant.
6

Case 1:08-cv-00431-LJM-DML Document 121 Filed 01/25/11 Page 7 of 7 PageID #: 968

Distribute to:
William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com
Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov
Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com
Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com
Anthony W. Overholt FROST BROWN TODD LLC aoverholt@fbtlaw.com

Kenneth T. Roberts ROBERTS & BISHOP ktrjustice@aol.com
Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
Marc Pe-Caine Sultzer OFFICE OF CORPORATION COUNSEL msultzer@indygov.org

7

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS and RANDY CARR,

)

on behalf of a class of those

)

similarly situated,

)

)

Plaintiffs,

)

vs.

)

)

CCA OF TENNESSEE, LLC d/b/a

)

CORRECTIONS CORPORATION

)

OF AMERICA, MARION

)

COUNTY SHERIFF FRANK

)

ANDERSON, VIRGINIA LEE,

)

TIMOTHY LITTLE, JEFF CONWAY, )

and NEIL PROBST,

)

)

Defendants.

)

No. 1:08-cv-00431-LJM-DML

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on defendants’, CCA of Tennessee, LLC

(“CCA”), Virginia Lee (“Lee” ), Timothy Little (“Little”), Jeff Conway (“Conway”), and Neil

Probst (“Probst”) (Lee, Little, Conway, and Probst collectively, “Employee Defendants”),

and Marion County Sheriff Frank Anderson (“Sheriff”) (collectively, “Defendants”), Motion

for Summary Judgment [Dkt. No. 122]. The Court has considered the parties’ submissions

and, for the reasons set forth belowG, RANTS Defendants’ Motion for Summary Judgment

[Dkt. No. 122].

I. BACKGROUND CCA is a private corporation specializi ng in running correctional f acilities under contract with local law enforcement agencies. Dkt. No. 111 at 1. Under contract with the

Marion County Sheriff’s Department (“Marion County”), CCA operates Marion County Jail #2 (“Jail #2”), located at 730 East Wa shington Street, Indianapolis, Indiana. Id. at 1–2. The Employee Defendants all work for CCA at Jail #2. Lee is a unit manager at Jail #2. Id. at 2. Little is the health serv ices administrator at Jail #2. Id. Probst is a doctor providing medical services to Jail #2 inmates. Id. Conway is the warden of Jail #2. Id.
Plaintiffs Alan Kress (“Kress”) and Randy Carr (“Carr”) (collectively, “Plaintiffs”) are inmates who were incarcerated at Jail #2 at the time this suit was filed. In April 2008, Plaintiffs filed this Section 1983 suit cha llenging the conditions at Jail #2 on behalf of themselves and those similarly situated. Dk t. No. 1. Plaintiffs alleged a number of violations of state and feder al law, regarding such issues as inmate mail procedure, availability and handling of grievances, medicalcare, privacy of medical information, cruel and unusual sanitation and overcrowding condi tions, and improper financial incentiv es being paid to Jail #2 administrators. See generally id.
On December 1, 2010, following briefing for m the parties, the Court issued an Order on Plaintiff’s Motion for Class Certification (“Class Certification”). Dkt. No. 111. The Court certified a class encompassing “[a]ny and all pesr ons currently, or who will be in the future, confined to the Jail #2 facility” with Kress and Carr as c lass representatives seeking injunctive and declaratory relief. Id. at 15. Because neither Kress nor Carr was incarcerated at Jail #2 at the time the Class Certification was issued, the Court dismissed all claims brought on their behafl individually as moot. Id. In addition, certain counts of the Amended Complaint were dismissed as improper for class treatment. Id. at 9–12. The following counts of the Amended Complaint [Dkt. No. 17] remain:
# Counts Three, Four, and Fourteen, alleging that Jail #2's conditions violate 2

the Eighth and Fourteenth Amendments of the United States Constitution, as well as the Indiana Jail Standards. Dkt. No. 17 ¶¶ 86–87, 99. # Counts Ten and Eighteen, alleging impr oper disclosure of inm ate health information in violation of the Health Insurance Privacy Portability Act (“HIPAA”). Id. ¶¶ 94–95, 103. # Counts Twelve and Twenty, alleging the payment of incentives to Jail #2 administrators to encourage constitutional violations. Id. ¶¶ 97, 105. On January 28, 2011, Defendant s filed a Motion for Summary Judgment on the remaining counts. Dkt. No. 122. In support of summary judgment, Defendants submitted an affidavit from Conway, as well as dsi covery responses from Plaintiffs. See generally id. In opposition, Kress and Carr presented their own statements. See generally dkt. nos. 1241, 124-2. In addition, Plaintiffs presented affidavits from Keith Harkness (“Harkness”) and Timothy-Patrick Treacy (“Treacy”), two other inmates who were incarcerated in Jail #2. See generally dkt. nos. 124-3, 124-4. Kress was incarcerated in Jail #2 in 2007 and 2008 while awaiting trial. Dkt. No. 124-2 ¶¶ 1–2. Upon ar rival at Jail #2, he wa s held in a small pre-intake room with approximately twenty-five other inmates. Id. ¶ 3–4. The pre-intak e room had two small benches, and most of theinmates had to stand. Id. ¶ 5. Inmates were confined to the preintake room, which had one toilet and no running water, for six to eighteen hours without food or water. Id. ¶¶ 6–8. After the pre-intake room, Kress was taken to the “big room,” which housed 100–150 inmates for two to eight days. Id. ¶¶ 11, 13. Inmates in t he big room slept on the floor in “plastic boats,” and there was only one bathroom and one sink for all the inmates in the room. Id. ¶¶ 12, 14–16. Kress also saw gnats in the bathroom and several other locations within Jail #2, as well as mold around bathrooms, sinks, and showers. Id. ¶¶ 21–22. Kress has notbeen incarcerated at Jail #2since August 19, 2008.
3

Dkt. No. 122-4 ¶ 4. Beginning on February 28, 2008, Carr was incarcerated at Jail #2. Id. ¶ 3. He was
confined to the pre-intake cell with approxim ate twenty-eight other inmates for eighteen hours without food or drinking water. Dkt. No. 124-1 at 3–4. Upon leaving the pre-intake cell, Carr was moved to the big room w here he remained f or six to eight days with approximately 150 other inmates. Id. at 6. He received sack ul nches in the big room three times a day. Id. at 7. Carr was transferred out of Jail #2 on August 5, 2008, and has not returned since. Dkt. No. 122-4 ¶ 3.
Affiant Harkness was incarcerated at Jail#2 on two occasions, in the spring of 2007 and again from January 31, 2010 until March 5, 2010.Dkt. No. 124-3 ¶ 2. Harkness stated that the pre-intake room was approximately thirteen feet by thirteenfeet square and housed twenty to thirty inmates. Id. ¶ 3. After the pre-intake room, Harkness was taken t o the “Katrina Room” for three to five days. Id. ¶¶ 8–9, 12. More ht an 100 inmates were housed in the Katrina Room, which had one sink, one toilet, and no showers. Id. ¶¶ 10, 13. Harkness saw gnats in the bathrooms and around trash cans in Jail #2. Id. ¶ 15. He also saw mold growing in showers, bathroom areas, and vents in the facility and reported that “[p]eople had respiratory illnesses.” Id. ¶ 16.
Affiant Treacy has been incarcerated atJail #2 on three occasions: 2007, 2008, and from February 2011 to the present. Id. ¶ 2. Treacy was not atJail #2 between September 11, 2009 and February 2011. Id. During his 2007 and 2008 incarcerations, Treacy started in the pre-intake room, whichwas approximately thirteen feet bythirteen feet and held thirty to forty inmates. Id. ¶¶ 4–5. The pre-intake r oom was “very hot,” and the inmates remained there “for several hours.” Id. ¶¶ 8–9. Treacy then was moved to the Katrina
4

Room, where he spent two or more days waiting for a dorm assignment . Id. ¶¶ 10, 14. The Katrina Room had one toilet and no working sinks, and inmate sleeping “boats” filled “almost all the floor space in the room.” Id. ¶¶ 12–13. Treacy also reported gnats in the toilets and living area, as well as “black mold” in the air vents and showers. Id. ¶¶ 17–18. However, Treacy acknowledges that “[s]ince returning to Jail #2 this month [February 2011], I witnessed that there have been substantial changes to the running of the facility.” Id. ¶ 20.
Beginning in May 2008, CCA computerized the intake process, significantly lessening the time spent in the intake process. Dkt. No. 122-4 ¶ 5. The current pre-intake room is a recreation room on the first floorof Jail #2 with a toilet, sink, and water fountain, and inmates are generally held in the pre-intake room for less than six hours. Id. ¶ 6. After pre-intake, inmates are transferred to a fourth floor dorm area designed to hold and sleep up to 148 inmates. Id. ¶ 7. This area is regular housni g unit with forty-two individual cells, each with bunks, sinks, and toilets. Id. In addition, the fourth floor dorm area has three drinking fountains, six toilets, six sinks, and six showers. Id.
CCA follows “regular housekeeping plans and procedures” to keep Jail #2 clean, including regular inspections. Id. ¶ 10. Mold is reported to the responsible unit manager for cleaning. Id. In addition, in late 2009, showerand drying areas of Jail #2 were stripped and refinished with an epoxy sy stem on floors, walls, and ceilings, including an antimicrobial to fight fungi and microbes. Id. Arab Pest Control performs monthly insect inspections and treatments, and additional inse ct treatments are performed on an asneeded basis. Id. ¶ 11.
The Court includes additional facts below as necessary. 5

II. LEGAL STANDARD As stated by the Supreme Court, summaryjudgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpens ive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers v. City of Milwaukee , 916 F.2d 1261, 1267–68 (7th Cir. 1990). Motions for summary judgment are governed by FederalRule of Civil Procedure 56(a), which provides in relevant part: The court shall grant summary judgment if the movantshows that there is no genuine dispute as to any material fa ct and the movant is entitled to judgment as a matter of law. Once a party has made a properly-supportedmotion for summary judgment, the opposing party may not simply rest uponthe pleadings but must instead submit evidentiary materials showing that a mat erial fact is genuinely dis puted. Fed. R. Civ. P. 56(c)(1). A genuine dispute of material fact exis ts whenever “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine dispute of materi al fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986);Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary uj dgment; rather, the nonmoving party bears the responsibility of identifying applicable evidence.See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). In evaluating a motion for summary judgment, the Court should draw all reasonable
6

inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to barsummary judgment. Only factual dsi putes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment , even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving party does not have the ultimate burden of proof on a claim, it is sufficient for the moving party to direct the court to the lack of evidence as to an element of that claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994.) “If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
III. DISCUSSION1 A. HIPAA
Defendants contend that Plaintiffs’ claims for violations of HIPAA mu st fail as a matter of law because HI PAA does not grant a private right of action. Although the Seventh Circuit has not directlyaddressed the issue, Plaintfifs concede, in accordance with
1 As an initial matter, Defendants contend that Plaintiffs’ response fails to comply with Local Rule 56.1 by failing to refute specifically each of Defendants’ numbered facts. See S.D. Ind. L.R. 56.1(b). Instead, Plaintiffs provide a paragraph entitled “Statement of Material Facts by CCA Defendants Which Are Disputed.” Dkt. No. 124 at 6. The Court concludes that Plaintiffs’ noncompliance is minor and, therefore, will excuse such noncompliance. Accord S.D. Ind. L.R. 56.1(i) (“The Court may, in the interests of justice . . . excuse failure to comply strictly with the terms of this rule.”).
7

the decisions of numerous courts that hav e considered the issue, that HIPAA does not provide a private cause of action. See, e.g., Acara v. Banks, 470 F.3d 569, 571–72 (5th Cir. 2006) (collecting cases); Doe v. Bd. of Trustees of Univ. of Ill., 429 F. Supp. 2d 930, 944 (N.D. Ill. 2006) (“HIPAA provides civil and criminal penalties for improper disclosures of medical information, but itdoes not create a private causeof action, leaving enforcement to the Department of Health and Human Se rvices alone.”). Because HIPAA does not confer a private right of actionfor violations, it is unnecessaryto evaluate whether Plaintiffs would be able to show a HIPAA violation. Defendants’ Motion for Summary Judgment is GRANTED on Plaintiffs’ HIPAA claims, and these claims must be DISMISSED.
B. EIGHTH AND FOURTEENTH AMENDMENT CLAIMS Technically, “Eighth Amendment scrutiny is appropriate only after the State has complied with the cons titutional guarantees traditionally associated with criminal prosecutions”—that is, the Eighth Amendment applies only to post-conviction prisoners. Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979) (citingUnited States v. Lovett, 328 U.S. 303, 317–18 (1946)). Pretrial detainees’ rights are evaluated underthe Due Process Clause of the Fourteenth Amendment. Id. However, the analysis appliedto alleged violations is the same under both the Eighth and Fourteenth Amendments. Estate of Perry ex. rel Perry v. Boone Cnty. Sheriff, No. 05-CV-1153, 2008 WL 694696, at *15 n.4 (S.D. Ind. Mar. 12, 2008) (McKinney, J.) (citingBarrie v. Grand Cnty., 119 F.3d 862, 868 (10th Cir. 1997)H; are v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996));see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“the due process rights of a [pretrial detainee under the Fourteenth Amendment] are at least as gr eat as the Eighth Am endment protections
8

available to a convicted prisoner.”). Whendiscussing the Eighth Amendment in this Order, the Court includes parallel rights under Fourteenth Amendment Due Process.
1. CURRENT EXISTENCE OF CONDITIONS As an initial matter, Defendants contendthat liability cannot be based on conditions existing at Jail #2 in 2008, when Kress and Carr were held there, in light of evidence that the conditions have been changed subsequently. Plaintiffs, in contrast, contend that they should be able to rely upon conditions at Jail #2 asthey existed when this suit was filed in April 2008. Under Section 1983, declaratory or injunctive relief is only proper if there is a continuing violation of federal law. Green v. Mansour, 474 U.S. 64, 73 (1985); see also Woods v. New Albany Police Dept’, No. 4:10-CV-2, 2010 WL 3398938, at *4 (S.D. Ind. Aug. 25, 2010) (Young, J.) (“If the court were to grant Plaintiff’s request for declarat ory or injunctive relief, it would not be the kind ofprospective relief intended under Section 1983, as it would be r elief from a past constitutional violation, rat her than relief from future or continuing violations of federal law.”). Plai ntiffs’ remaining causes of action are only for injunctive and declaratory relief, not damages. See generally dkt. no. 111. Because the relief in this case would be limited to injunctive or declaratory relief, the Court concludes that evidence regarding Defendant s’ remedying of conditions is relevant and should be considered in conjunction with Plaintiffs’ evidence regarding previous conditions. Accord. Green, 474 U.S. at 73.
2. INVOLVEMENT OF INDIVIDUAL DEFENDANTS Defendants further assert that there is no evidence that the Employee Defendants
9

or the Sheriff were personally involved in the alleged Eighth and Fourteenth Amendment violations. Therefore, Defendants contend, the constitutional claims against the Employee Defendants and the Sheriff must be dismissed as a matter of law.
Section 1983 does not allow for respondeat superior liability. Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002). Instead, a state officer may be held liable only if he is “personally involved” in the constitutional violation at issue. See Knight v. Wiseman, 590 F.3d 458, 462–63 (7th Cir. 2009). In addition, an ofcfei r may be liable in hsi official capacity if the constitutional violation at issue resultedfrom an “official policy or custom” over which the officer has ultimate policymaking authority. Perkins, 312 F.3d at 875 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 121–22 (1988); Abbott v. Vill. of Winthrop Harbor, 205 F.3d 976, 981 (7th Cir. 2000)). With these st andards in mind, the Court ex amines the individual Defendants in this action.
Plaintiffs concede that some of the Employee Defendants no longer belong in this case. In their response to the Motion for Summary Judgment, Plaintiffs concede that because the Court previously dismissed Plai ntiffs’ claims arising f rom grievance procedures, Lee is no longer an appropriate defendant in this action. Dkt. No. 124 at 8. Plaintiffs further concede that defendants Little and Probst were included in this action due to their role in alleged HIPAA violations. Id. at 8–9. Because the Court concludes that Plaintiffs’ HIPAA claims must be dismissed, Little and Probst are no longer app ropriate defendants in this action. Therefore, De fendants’ Motion for Summar y Judgment is GRANTED in its entirety as applied to defendant s Lee, Little, and Probst, and all claims against them are DISMISSED.
However, Conway and the Sheriff require closer attention. Defendants do not 10

dispute that both have ultimate policymaking authoirty over Jail #2. In other cases involving prison conditions, the Seventh Circuit has re cognized that sheriffs and wardens “can be expected to know of or partciipate in creating systemic, asopposed to localized, situations.” Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th Cir. 1996) . In this case, the conditions Plaintiffs challenge as a deprivation of their Eighth Amendment rights include mold, insect infestations, and overcrowding in intake rooms. As opposed to previouslyd- ismissed claims in this case such as failure to provide certain medications or mishandling of mail, see generally dkt. nos. 111 & 121, the present complaints concern facility-wide issues rather than localized ones. Cf. Antonelli, 81 F.3d at 1429 (dismissing § 1983 claim s against warden and sheriff for refusals of indiv idual prisoner requests). The Court, therefore, cannot conclude that claims against Conway and the Sheriff are precluded due to lack of personal involvement as a matter of law.
3. EIGHTH AMENDMENT VIOLATIONS Plaintiffs contend that the conditions of Jial #2 violate their Eighth Amendment rights. The Eighth Amendment protects against the infliction of “cruel and unusual punishment.” U.S. CONST. amend. VIII; see also Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001). Prison conditions “may be harsh and uncom fortable without violating the Eighth Amendment[].” Dixon v. Godinez , 114 F.3d 640, 642 (7th Cir. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 833–34 (1994));see also Rhodes v. Chapman, 452 U.S. 337, 349 (1981) (“[T]he Constitution doesnot mandate comfortable prisons[.]”). However, prisoners are entitled to “the minimal civilizedmeasure of life’s necessities.” Dixon, 114 F.3d at 642. A combination of conditions may constitutean Eighth Amendment violation, even when one
11

of those conditions in isolation would not, when the combination has “a mutually enforcing
effect that produces the depr ivation of a single, identif iable human need such as food,
warmth, or exercise[.]” Wilson v. Seiter, 501 U.S. 294, 304 (1991). Overall, the Eighth
Amendment “must draw its meaning from the evolving standardsof decency that mark the
progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).
When determining prison official liability under the Eighth Amendment, violations are
addressed under the deliberate indifference standard. Mayoral, 245 F.3d at 938. A prison
official may be liable under the Eighth Amendment when he “knows of and disregards an
excessive risk to inmate health or safety.” Id. This standard includes obj ective and
subjective prongs: there must be an “objective risk of danger,” and the official in question
must have had actual knowledge of the risk. Id. (citing Henderson v. Sheahan, 196 F.3d
839, 844–45 (7th Cir. 1999)). It is not enough that prison officials acted negligently. Id.
However, a pr ison official may be found liable without “desir [ing] the harm to befall an
inmate.” Id. at 939. A prison condition suit fails “[i]f the harm is remote rather than
immediate, or the officials don’t know about it or can’t do anything about it[.]” Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). Plainftfis point to a number of conditions2 they
allege constitute a deprivationof their Eighth Amendment rights, including gnat infestation,
mold, and the conditions of confinement dur ing intake. The Court addresses these
conditions in turn.
2 In addition to the issues addressed in this Order, Plaintiffs discuss the conditions of the segregation cells. Dkt. Nos. 124-2 ¶¶ 17–20; 124-3 ¶ 17; 124-4 ¶¶ 15–16. However, Plaintiffs did not identify any issues with regard to segregation cells in their answers to interrogatories or depositions. See generally dkt. nos. 122-1, 122-2. The only issue with segregation cells addressed in Plaintiffs’ depositions involves Carr’s contention that he did not receive proper medication while in segregation. Dkt. No. 122-3 at 3–4. Plaintiffs may not contradict their prior deposition and interrogatory responses with subsequent affidavits. Lorillard Tobacco Co., Inc. v. A&E Oil, Inc., 503 F.3d 588, 593 (7th Cir. 2007). To the extent that Plaintiffs seek to do so now, the Court will disregard their presented evidence.
12

Plaintiffs have presented affidavits stati ng that inmates saw gnats in bathr ooms, around trash cans, and in other pal ces in Jail #2 as late as February 2011. Dkt. Nos. 124-2 ¶ 21; 124-3 ¶ 15; 124-4 ¶ 17. Dfeendants present an affidavit fromConway stating that Jail #2 is inspected and treated for insects mont hly. Dkt. No. 122-4 ¶ 11. Additionally, Defendant present answers to interrogatories in which Kress discusses “gnats in the bathroom which were eventually cleaned up.” Dkt. No. 122-1 at 2–3. Taken in the light most favorable to Plaintiffs, accord. Estate of Cole , 94 F.3d at 257, there is sufficient evidence to create a genuine dispute as to wheht er gnats are present atJail #2. However, there is no evidence that any gnats pr esent at Jail #2 caused injuries of any kind to any prisoner beyond annoyance. Although prolonged pest infestation may constitute a constitutional deprivation, the Court concludesthat the gnat presence di entified in this case is not severe enough to consttiute such a deprivation. See Johnson v. Pollard, No. 08-CV297, 2009 WL 3063327, at *13–14 (E.D. Wis. S ept. 16, 2009) (gnats in pr isoner cell insufficient to constitute constitutional violation); see also Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (cockroaches in prisoner cell insufficient to constitute constitutional violation, even though prisoner was bitten by them at least twice).
Plaintiffs’ evidence indicates that Jail #2 had black mold in air vents and shower facilities. Dkt. Nos. 124-2 ¶22; 124-3 ¶ 16; 124-4 ¶ 18. Affai nt Keith Harkness states that “[p]eople had respiratory illnesses[]” connected tothe mold. Dkt. No. 124-3 ¶ 16. However, none of Plaintiffs’ affiants indicate any basis for their belief that the substance observed was in fact black mold or caused any respiratory illnesses, see dkt. no. 122-5 at 64 & 66, and Defendants contend that the affiants are mistaken in believing that the substance was mold. In addition, Defendants have int roduced evidence that Jail #2’s shower facilities
13

were refinished in late 2009 and that any mo ld at Jail #2 is cleaned during routine housekeeping. Dkt. 122-2 ¶ 10. In his depositi on, Plaintiff Kress confirmed that Jail #2 took steps to clean the “mold,” but he did not believe they “got it accomplished.” Dkt. No. 122-5 at 56. Although Plaintiffs have shown a genuine dispute of fact as to the existence of mold at Jail #2, accord. Estate of Cole, 94 F.3d at 257, withou t evidence of illnesses resulting from t he so-called mold, the Court concludes that Plaintiffs’ allegations are insufficient to rise to the levelof a constitutional violation. Cf. Board v. Farnham, 394 F.3d 469, 485–86 (7th Cir. 2005) (mold and black fiberglass in air vents resulting in respiratory problems and nosebleeds sufficient fo r Eighth Amendment violation); Lapine v. Caruso, 2011 WL 588774, at *5 (W.D. Mich. Feb. 10, 2011()collecting cases for the proposition that “mild to moderate symptoms from allergic reactions to common allergens like dust, mold and mildew do not rise to constitutional dimension”).
In their challenge to conditions during the intake process, Plaintiffs discuss two areas: the “pre-intake room”3 and the “Katrina Room.” Plaintiffs allege that in the pre-intake room, which measures approximately fifteen by fifteen feet, twenty to thirty inmates are confined with only one toilet and no running wate r. Dkt. Nos. 124-1 at 3–5; 124-2 ¶¶ 4, 6–7; 124-3 ¶¶ 3–4; 124-4 ¶¶ 4–5, 7. Inmates can be held in the pre-intake room for up to eighteen hours without food or water in “stif ling” heat, and there is only enough room for six inmates to sit down, while t he rest mu st stand. Dkt. Nos. 124-1 at 3; 124-2 ¶¶ 5, 8–9;124-3 ¶¶ 5–6; 124-4 ¶¶ 6, 8. Defendants contend that the intake process has been revised such that inmates are held in the pr e-intake room, which has a toilet, sink, and water fountain, for less than six hours. Dkt. No. 122-4 ¶¶ 5–6. Once again, Plaintiffs fail
3 This has also been referred to as the “Forever Room.” See Dkt. No. 122-1 at 3.
14

to suggest that any physical or mental injury occurred as a result of the conditions of the pre-intake room, and the Court is unc onvinced that Plaintiffs’ allegations amount to a constitutional violation. Cf. Carston v. Sacks, No. 2:03-CV-1490, 2007 WL 41005786, at *3–*5 (W.D. Pa. Mar. 30, 2007) (denial of food and water for four days not a constitutional violation); Jensen v. Lake Cnty., 958 F. Supp. 397, 406 (N.D. Ind. 1997) (overcrowding is not per se unconstitutional).
Following processing in the pre-intake room, inmates are sent to the “Katrina Room” while awaiting dorm assignments. Dkt. No. 124-4 ¶ 10. 100 to 150 inmates are housed in the Katrina Room, where they sleep in pl astic boats on the floor f or six to eight days. Dkt. Nos. 124-1 at 6–7; 124-2 ¶¶ 11, 13–16; 124-3 ¶¶ 9–12, 14; 124-4 ¶ 11–12, 14. The Katrina Room has one toilet and one sink. Dkt. Nos. 124-1 at 6–7;124-2 ¶ 12; 124-3 ¶ 13; 124-4 ¶ 13. Like the pre-intake room, Defendants have made significant changes to the “Katrina Room” portion of the intake process.Following processing in the pre-intake room, inmates are taken to a dorm area designed tohold and sleep up to 148 inmates. Dkt. No. 122-4 ¶ 7. The dorm is a regular housing unit including bunks, cells, three drinking fountains, six toilets, six sinks, and six showers, as well as sinks and toilets in each of the forty-two cells. Id. The Court concludes that, however bad conditions may have been in the “Katrina Room” at one time, the conditions at this stage of the intake process are not currently constitutionally deficient. Accord. Dixon, 114 F.3d at 642.
Although the Court remains unconvinced that the conditions in Jail #2 are severe enough to constitute constitutional violations,even assuming that the conditions are severe enough to constitute a deprivation of Plaint iffs’ Eighth Amendment rights, the evidence
15

before the Court shows that Defendanst were not deliberately indifferent4 to the conditions.
There is no evidence that Defendants disregarded inmate health and safety in operating
Jail #2. In fact, all evidence in the record indicates that Defendants have taken steps to
improve conditions at Jail #2. See generally dkt. no. 122-4; see also dkt. no. 124-4 ¶¶ 4,
20 (comparing previous conditi ons and stating, “Since returning to Jail #2 this month, I
witnessed that there have been substantial changes to the runningof the facility.”); dkt. no.
122-1 at 2–3 (gnats “were event ually cleaned up”). In shor t, there is no evidence that
Defendants continue to “disregard[] an excessive risk to inmate health or safety” such that
injunctive relief is appropriate. Mayoral, 245 F.3d at 938. Because Plaintiffs have not
brought forth evidence demonstrating a genuine dispute of material fact as to the presence
of a continuing constitutional violation, Defendants are entit led to summary judgment.
Accord. Green, 474 U.S. at 73.
C. INDIANA JAIL STANDARDS
Defendants contend that they are entitled to summary judgment on Plaintiffs’
accusations under the Indiana Jail Standards (“Standards”) because, like HIPAA, the
Standards do not provide a private right of action. It iswell-established that the Standards
do not provide a private rightof action for monetary damages.See, e.g., Malone v. Becher,
4 Plaintiffs argue that, in case the pretrial detainees, a lower standard applies because “[t]he Due Process Clause prohibits any kind of punishment—not merely cruel and unusual punishment—of a pretrial detainee[,]” and therefore, Defendants must show that any conditions of confinement are not for the purpose of punishment. Dkt. No. 124 at 11 (quoting Antonelli, 81 F.3d at 1425; Bell, 441 U.S. at 535 n.16); but see Estate of Perry, 2008 WL 694696, at *15 n.4 (applying the same standard under the Eighth and Fourteenth Amendments). However, Plaintiffs acknowledge that Antonelli still requires application of the deliberate indifference standard. Antonelli, 81 F.3d at 1425 (citing Salazar v. City of Chi., 940 F.2d 233, 238 (7th Cir. 1991)) (“A prison official violates the constitutional rights of a pretrial detainee only when he acts with deliberate indifference. Conduct is deliberately indifferent when the defendant acts in an intentional or criminally reckless manner.”).
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No. NA-01-101, 2003 WL 22080737, at *19–*20 (S.D. Ind. Aug. 29, 2003) (Hamilton, J.).
Plaintiffs contend that Malone and its progeny do not preclude suits for injunc tive relief
under the Standards, particularly when the jail in question is run by a private, rather than
governmental, entity.
The Court previously dealt with a similar issue in this litigation when it determined
that, as to Plaintiffs’ claims regarding grievance procedures, neither the Prison Litigation
Reform Act or the Standards provided a private rgi ht of action. Dkt. No. 109 at 5–6. In that
Order, the Court stated:
The courts in Malone and Tyson [v. Grant Cnty. Sheriff, No. 07-CV-10, 2007 WL 1395563 (N.D. Ind. May 9, 2007) ] analyzed the Standards and the statute under which the Standards were promulgated and found that Indiana’s General Assembly provided a remedy for a violat ion of the Standards—but not a private right of action for inmates. Malone, 2003 WL 22080737, at *19–*20;Tyson, 2007 WL 1395563, at *8–*11.Specifically, the remedy provided by Indiana’s General A ssembly is that “the sheriff [may] bring an action in the circuit court . . for appropriate mandatory or injunctive relief[,]” after the Department of Corrections investigates and notifies the jail of the violation. Ind. Code § 11-12-4-2. The Court agrees with the Malone and Tyson courts that the Indiana GeneralAssembly contemplated a specific remedy for potential violations of the Standards and did not intend to provide inmates with a private right of acti on to enforce the grievance process requirement in the Standards.
Id. at 5–6. The Court now expands this reas oning to encompass Plaintiffs’ remaining
claims under the Standards.
In doing so, the Court finds the reasoning of our sis ter court in Tyson to be highly
persuasive.5 In Tyson, Judge Lozano of the Northern District of Indiana examined similar
claims for injunctive and declaratory relief under the prison condition provisions of the
5 Plaintiffs contend that the Court should disregard Tyson as it “hails from the Northern District [and] is not binding on this court.” Dkt. No. 124 at 15. Plaintiffs go on to argue that “Indiana courts are the ultimate determiner of Indiana law, not the federal courts.” Id. However, in absence of any Indiana state cases directly on point, the Court is fully within its discretion to consider well-reasoned opinions by sister courts.
17

Standards and f ound no private right of ac tion. 2007 WL 1395563, at *7–*11. While Malone specifically addressed damages, not injunctive relief, Tyson expands the reasoning of Malone to encompass all forms of relief notspecifically provided by statute. Id. Like the Tyson court, this Court concludes that, as a ma tter of law, the Standards preclude all private rights of action by prisoners, regardless of the type of relief requested.
Plaintiffs contend that Tyson should not apply when the sheriff has contr acted jail oversight to a private company. Because the sheriff is legally responsible for running county jails, see Ind. Code § 36-2-13-5(a)(7) (2010), Plaintiffs argue that failure to comply with the Standards would make t he Sheriff a defendant rather than a plaintiff and “[c]ertainly the Sheriff is not going to sue his alter ego, or the contractor he oversees, for not complying with jail regulations.” Dkt. No. 124at 15. However, Plaintiffs have not shown why this makes jails run under contract with a private company any different than countyrun jails. I n both cases, under Plaintiffs’ logic, the county sheriff would have to sue himself.6 In addition, Plaintiffs’ argument ignores the fact that the Standards allow either the county sheriff or the commissioner of the department of correc tions to file suit to enforce the Standards. See Ind. Code § 11-12-4-2(b) (2010). As far as the Standards are concerned, the Court is unconvinced that a privately-run jail is subject to suit by prisoners to enforce the Standards any more than a county-run jail. Regardless of the par ty operating the jail, the Standards preclude private rights of action for prisoners to enforce
them, and Defendants Motion for Summary Judgment is GRANTED as to these claims.
6 Plaintiffs contend that “[t]he only way to render [the sheriff suit] provision with some rationality is to assume there are occasions when a county sheriff may have to sue the county’s fiscal body (the county commissioner or county council) to ensure that the Sheriff has the funds to comply with the Indiana Jail Standards.” Dkt. No. 124 at 15. Contrary to Plaintiffs’ implication, the Court is convinced that a suit by the sheriff against the county fiscal body is exactly what the General Assembly intended in enacting the Standards.
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D. FINANCIAL INCENTIVES PAID TO JAIL ADMINISTRATORS Defendants contend that the undisputed evidence shows no improper incentives were paid to jail administrators to perform actsviolating Plaintiffs’ constitutional rights7. The only evidence Plaintiffs have introduced involveshow the amount of grievances affects Jail #2’s rating by the American Correctional Association (“ACA”). See generally dkt. no. 80-1. However, Plaintiffs admit that they have notprovided any evidence that CCA pays financial incentives to its administrators based either on ACA ratings or any other factor. Dkt. No. 124 at 17 & n.10. Defendantshave presented evidence that CCA does not pay incentives to administrators to act in an unconstituti onal manner. Dkt. No. 122-2 ¶ 12. Plaintiffs suggest that the Court should infer the paying of financial incentives based on findings in other cases against CCA in other courts. See Bowman v. Corrections Corp. of Am., 350 F.3d 537, 542 (6th Cir. 2003) (jury found that doctor was paid incentives by CCA to reduce costs of medical treatment). However, the Court must decide summary judgment based on the evidence present before it, not hypothetical evidence which may or may not exist. Accord. Fed. R. Civ. P. 56(e). Plaintiffs hav e provided no evidence that CCA provides incentives of any kind to its administrator s, let alone that those incentives depend on or encourage constitutionally-suspect policies for inmate treatment. Defendants are entitled to summary judgment for these claims.
7 Defendants further contend that Plaintiffs have not even stated a cause of action in this regard. However, because the Court finds that Plaintiffs have not produced sufficient evidence on this claim as a factual matter, the Court concludes that it is unnecessary to address this contention.
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IV. CONCLUSION For the reasons set forth herein, Defendants’ Motion for Summary Judgment [Dkt. No. 122] is GRANTED in its entirety. Judgment shall issue accordingly. IT IS SO ORDERED this 13th day of April 2011.
________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana Distribution attached.
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Distribution to:
William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com
Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov
Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com
Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com
Anthony W. Overholt FROST BROWN TODD LLC aoverholt@fbtlaw.com
Kenneth T. Roberts ROBERTS & BISHOP ktrjustice@aol.com
Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
Marc Pe-Caine Sultzer OFFICE OF CORPORATION COUNSEL msultzer@indygov.org
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS and RANDY CARR,

)

on their own behalf and on behalf

)

of a class of those similarly situated, )

)

Plaintiffs,

)

)

vs.

)

)

CCA OF TENNESSEE, LLC,

)

MARION COUNTY SHERIFF FRANK )

ANDERSON, VIRGINIA LEE,

)

TIMOTHY LITTLE, JEFF CONWAY, )

and NEIL PROBST,

)

)

Defendants.

)

NO. 1:08-cv-00431-LJM-DML

ORDER ON PLAINTIFFS’ MOTION TO AMEND JUDGMENT AND PETITION FOR ATTORNEYS’ FEES

Pending before the Court is class plaint iffs’, Alan Kress and Randy Carr, on their

own behalf and on behalf of a class of those sim ilarly situated (collectively, “Plaintiffs”),

Motion to Amend Judgment and Petition for Attorneys’ Fees (“Motion to Amend”) [Dkt. No.

134]. Pursuant to Federal Rule of Civil Pr ocedure 59 (“Rule 59”), Plaintiffs move for

amendment of this Court’s April 13, 2011 Order (“SJ Order”) granting summary judgment

in favor of defendants, CCA of Tennessee, LLC (“CCA”); Marion County Sheriff Frank

Anderson; Virginia Lee; Timothy Little; Jeff Conway; and Neil Probst (collectively,

“Defendants”). The Court has considered the parties’ arguments and DENIES Plaintiffs’

Motion to Amend [Dkt. No. 134].

I. BACKGROUND Plaintiffs filed suit on behalf of persons incarcerated at Marion County Jail II (“Jail II”), seeking declaratory and injunctive relief against Defendants for unacceptable jail conditions and practices. Dkt. No. 1. Plai ntiffs were permitted to serve as class representatives for claims as to unsafe jail conditions, privacy violations during Jail II’s intake processes, and incentives beni g paid to Jail II administrators.See generally dkt. no. 111. On April 13, 2011, following more than there years of litigation and extensive briefing, the Court issued the SJ Order. See generally dkt. no. 132. In granting summary judgment in favor of Defendants, the Court concluded th at Plaintiffs had not shown that conditions at Jail II violate the Eighth and Fourteenth Amendments of the United States Constitution, that the Indiana Jail Standards do not provide a cause of action against CCA, and that whether an injunction should issue is based on conditions existing at the time summary judgment was filed. Id. at 8–9, 11–18. On May 11, 2011, Plaintiffs filed the present Motion to Amend. See dkt. no. 134. In their Motion to Amend, Plaintiffs contend that the Court applied incorrect standards in the SJ Order and request the Court amend the SJ Order to deny summary judgment to Defendants. Id. at 3. Plaintiffs also request the Court award them attorneys’ fees. Id. The Court includes additional facts below as necessary.
II. LEGAL STANDARD In order to prevail on a Rule 59 mot ion, Plaintiffs must “clearly establish”: (1) that there has been a manifest error in law or fa ct; or (2) that newly discovered evidence
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precludes entry of judgment. Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006) (quoting Romo v. Gulf Stream Coach, Inc. , 250 F.3d 1119, 1122 n.3 (7th Cir. 2001) (abrogated on other grounds)). Rule 59 motions do not give a party the opportunity to rehash old arguments or to present new ar guments or evidence “that could and should have been presented to the district court prior to the judgment.” Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Instead, such motions are “valuable” when “the Court has patently misunderstood a party, or has made a decision outside the adversaria l issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension . . . [or] a controlling or signifi cant change in the law or facts since the submission of issue to the Court.” Bank of Waunakee v. Rochester Cheese Sales, Inc. , 906 F.2d 1185, 1191 (7th Cir. 1990).
III. DISCUSSION A. RECONSIDERATION OF PREVIOUS ORDER Plaintiffs contend that the Court ignored key precedent in reaching its conclusions in the SJ Order. Plaintiffs focus on three issues in this regard. They argue that the Court misapplied standard for an injunction under the Prison Litigation Reform Act (“PLRA”) as discussed in Austin v. Wilkinson, 372 F.3d 346, 349 (6th Cir. 2004). Dkt. No. 135 at 2–3. Next, they contend that the Coutr ignored the necessity for an atriculation of “legitimate and nonpunitive goals” of the conditions ofconfinement, in violation ofAntonelli v. Sheahan, 81 F.3d 1422, 1425 (7th Cir. 1996). Dkt. No. 135 at 3–4.Lastly, Plaintiffs argue that CCA, as a private company, is not entitel d to be treated as if it werea governmental entity under the
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“no private cause of action” theory, but they cite no authority bolstering their conclusion. However, as Defendants correctly point out, Plaintiffs made nearly identical arguments in opposition to summary judgment in the first place. See dkt. no. 124 at 7–8 (arguing that injunction looks at conditions at the time suit is brought),10–11 (seeking application of the “legitimate and nonpunitive goals” standard), 14–16 (arguing that CCA, as a private entity, should be subject to injunction for violationsof Indiana Jail Standards). The Court carefully considered the relevant case law, including Austin and Antonelli, in arriving at its conclusions in the SJ Order. Rule 59 mo tions are not an opportunit y to rehash old arguments that were previously presented to the Court, see Moro, 91 F.3d at 876, and the Court concludes that there isno reason to revisit the SJOrder based on these arguments.
However, Plaintiffs’ argument that the recent Supreme Court decision in Brown v. Plata, 131 S.Ct. 1910 (2011), alters the Court’s conclusion as to the propriety of injunctive relief deserves closer attention. See dkt. no. 138 at 3; see also generally dkt. no. 137. Rule 59 motions may be granted when there hasbeen “a controlling or significant change in the . . . law since the submissoin of the issue to the Court.”Bank of Waunakee, 906 F.2d at 1191. Plaintiffs contend that Plata allows an injunction to issue under PLRA even i f remedial measures have been taken by prison officials. However, in reviewing the Plata decision, the Court concludes that it does not warrant amendment of the judgment in this case. In Plata, it was undisputed that constitutional violations still existed in the prisons at issue even though some remedial measures had been taken. 131 S.Ct. at 1935–36. In addition, the Plata trial court took into account “cu rrent prison conditions” in issuing its injunction requiring the State of California to remedy the overcrowding, and the Supreme Court approved of this approach. Id. at 1935 (“The . . . court properly admitted evidence
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of current conditions as relevantto the issues before it.”);see also id.at 1936 (“[T]he record and opinion make clear that the decision . . . was based on current evidence pertaining to ongoing constitutional violations.”). Contrary to Plaintiffs’ assertion, Plata does not stand for the proposition that courts only may take into account conditions existing at the time a lawsuit is filed in determining whether injunctive relief is appropriate. Indeed, Plata confirms the PLRA’s requirement that injunctive relief be instituted only as “necessary to correct a current and ongoing violation.” Id. at 1930–31 (citing 18 U.S.C. § 3626). In the present case, no current and ongoing violation exitsed at the time the injunction would have been entered and, therefore, no injunctive relief was appropriate. Plata does not compel the Court to amend the SJ Order.
B. ATTORNEYS’ FEES In addition to requesting that the Court amend its grant of summary judgment to Defendants, Plaintiffs contend that they are entitled to their attorneys’ fees in pursuing this action, either as a prevailing party under 42 U.S.C. § 1988(“§ 1988”) or due to Defendants’ “bad faith” in prolonging this case. See dkt. no. 135 at 5–8. For the reasons set f orth below, however, the Court concludes that Plaint iffs are not entitled to recover attorneys’ fees, either under § 1988 or Indiana law. To recover attorneys’ fees under § 1988, Pl aintiffs must show that they are t he “prevailing party” in the case. 42 U.S.C. § 1988( b). Plaintiffs contend t hat they are the prevailing party in this suit because the suit “achieve[d] much of [its] goals in getting CCA to change conditions at the jail.” Dkt. No. 135 at 6. However,the Supreme Court explicitly
5

rejected the catalyst theory used in Plaintiffs ’ argument, stating t hat to be considered a prevailing party, a plaintiff must obtain either an “enforceable judgment on the merits” or a “court-ordered consent decree.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 604 (2001). “A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change” to allow for the awar ding of attorneys’ fees under § 1988. Id. at 605. In this case, any changes made by Defendants to conditions at Jail II, even if inspired by thislawsuit, did not result from a judgment on the merits or a consent decree. Therefore, Plaintiffs are not entitled to attorneys’ fees under § 1988 because they are not the prevailing party.
Alternatively, Plaintiffs contend that they are entitled toattorneys’ fees under Indiana law because “CCA’s handling of this case appears to exemplify bad faith that crosses the line between zealous advocacy and unwarranted litigation.” Dkt. No. 135 at 7. Under Indiana law,
The court may award attorney’s fees as part of the cost to the p revailing party, if the courts finds that either party:
(1) brought the action or defense on a claim or def ense that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action ordefense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith. Ind. Code § 34-52-1-1(b). Alt hough Plaintiffs argue that this provision ent itles them to attorneys’ fees, the Court concludes that because Plaintiffs are not the prevailing party under Indiana law, they are not entitled to attorneys’ fees under this provision either. See,
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e.g., Geretbauer v. Styers , 898 N.E.2d 369, 384 ( Ind. Ct. App. 2008) (party losing on summary judgment is not “prevailing party” underInd. Code. § 34-52-1-1). Judgment was granted in favor of Defendants on all of Plainftfis’ claims, and Plaintiffs have not shown that they were the prevailing party in any way.
IV. CONCLUSION For the reasons set forth herein, Plaint iffs’ Motion to Amend [Dkt. No. 134] is DENIED in its entirety. The April 13, 2011 Order granting sum mary judgment to Defendants remains in effect. IT IS SO ORDERED this 26th day of July 2011.

Distribution attached.

________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana

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Distribution to:
William A. Hahn BARNES & THORNBURG LLP william.hahn@btlaw.com
Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov
Adam Lenkowsky ROBERTS & BISHOP alenkowsky@roberts-bishop.com
Paul K. Ogden ROBERTS & BISHOP pogden@roberts-bishop.com
Anthony W. Overholt FROST BROWN TODD LLC aoverholt@fbtlaw.com
Kenneth T. Roberts ROBERTS & BISHOP ktrjustice@aol.com
Tasha Rebecca Roberts ROBERTS AND BISHOP troberts@roberts-bishop.com
Michael Rosiello BARNES & THORNBURG LLP mike.rosiello@btlaw.com
Marc Pe-Caine Sultzer OFFICE OF CORPORATION COUNSEL msultzer@indygov.org
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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett M cKinley D irksen U nited States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 w w w .ca7.u sco urts.gov

October 9, 2012

NOTICE OF ISSUANCE OF MANDATE

Laura A. Briggs To:
UNITED STATES DISTRICT COURT Southern District of Indiana United States Courthouse Indianapolis , IN 46204-0000

ALAN KRESS and RANDY CARR, Plaintiffs - Appellants

No.: 11-2950

v.
CCA OF TENNESSEE, LLC, doing business as CORRECTIONS CORPORATION OF AMERICA, et al., Defendants - Appellees

Originating Case Information:

District Court No: 1:08-cv-00431-LJM-DML Southern District of Indiana, Indianapolis Division District Judge Larry J. McKinney
Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

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NOTE TO COUNSEL: If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of.
Please acknowledge receipt of these documents on the enclosed copy of this notice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:

Received by:

10/9/12
_________________________

____________________________________

form name: c7_Mandate(form ID: 135)

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

September 14, 2012

FINAL JUDGMENT

Before:

WILLIAM J. BAUER, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge

ALAN KRESS and RANDY CARR, Plaintiffs - Appellants

No.: 11-2950

v.
CCA OF TENNESSEE, LLC, doing business as CORRECTIONS CORPORATION OF AMERICA, et al., Defendants - Appellees

Originating Case Information:

District Court No: 1:08-cv-00431-LJM-DML Southern District of Indiana, Indianapolis Division District Judge Larry J. McKinney

The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

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In the
United States Court of Appeals
For the Seventh Circuit

No. 11-2950 ALAN KRESS and RANDY CARR,
v.

Plaintiffs-Appellants,

CCA OF TENNESSEE, LLC, doing business as CORRECTIONS CORPORATION OF AMERICA, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-00431-LJM-DML—Larry J. McKinney, Judge.

ARGUED JANUARY 10, 2012—DECIDED SEPTEMBER 14, 2012

Before BAUER, ROVNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. The plaintiffs-appellants, Alan Kress and Randy Carr (“Appellants”), appeal an order from the Indiana district court denying class certification in part and an order granting summary judgment in favor of appellees Corrections Corporation of America, et al. (“CCA”), the owner and operator of the

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Marion County Correctional Center (“the jail”), located in Indianapolis, Indiana. We affirm.

I. BACKGROUND
In 2008, Appellants were inmates at the jail, located in Indianapolis, Indiana. The jail was operated by CCA pursuant to a contract with the Marion County Sheriff’s Department. According to Appellants, the jail provided inadequate medical care and exposed inmates to inhumane living conditions so egregious that they amounted to cruel and unusual punishment in violation of the Eighth Amendment. In April 2008, Appellants filed a complaint and a subsequent amended complaint against CCA seeking injunctive and declaratory relief under 28 U.S.C. §§ 2201-02 and Rule 57 of the Federal Rules of Civil Procedure. In June 2008, Appellants filed a motion for class certification, defining their class as “any and all persons currently, or who will be in the future, confined in the [jail] facility.” In December 2010, the district court certified the class, naming Appellants as class representatives, but dismissed many of the claims filed in Appellants’ complaint from class certification. The dismissed issues included Appellants’ claim that the jail failed to provide adequate medical care, that the conditions of confinement inside the jail were inhumane, and that the procedures in the jail violated inmates’ rights under the Health Insurance Portability and Accountability Act (“HIPAA”). Appellants filed a motion for reconsideration which was denied the following month. CCA moved for summary judgment on the re-

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maining issues, and in April 2011 the district court granted their motion. Appellants also filed a motion to amend the judgment which was denied.
On appeal, Appellants seek review of the court’s decision to deny class certification of their claim regarding CCA’s reduction of daily pill calls for inmates from three per day to two per day, the court’s order granting summary judgment in favor of CCA, and the district court’s order denying Appellants’ motion to amend the judgment.

II. ANALYSIS
The issues on appeal require this Court to employ more than one standard of review. So, we first review the district court’s decision regarding class certification for an abuse of discretion because “the law gives broad leeway to district courts in making [such] decisions.” Amchem Prods. v. Windsor, 521 U.S. 591, 630 (1997). A district court abuses its discretion when it commits an error of law or makes a clearly erroneous finding of fact. Christmas v. City of Chicago, 682 F.3d 632, 638 (7th Cir. 2011). With respect to Appellants’ appeal of the district court’s grant of summary judgment, that decision is reviewed de novo and is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 836-37 (7th Cir. 2001); Fed. R. Civ. P. 56(c).

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A. Class Certification
In February 2008, CCA changed the jail’s general pill call procedure by ordering a reduction in the number of daily rounds of medicine given to inmates; daily rounds were reduced from three per day to two per day. The jail’s resident physician evaluated each inmate’s medication program and exceptions were made; third rounds continued to be given to those inmates with unique medical needs. No exceptions were made for Appellants. Appellants claimed this was inadequate medical care, violating the rights of inmates under the Eighth and Fourteenth Amendments and the Indiana Administrative Code 210 § 3-1-11. Appellants included this issue in their motion for class certification pursuant to Federal Rule of Civil Procedure 23.
The Eighth Amendment “safeguards the prisoner against a lack of medical care that may result in pain and suffering which no one suggests would serve any penological purpose . . . [and] prison officials violate the Constitution if they are deliberately indifferent to prisoners’ serious medical needs.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)).
Regarding class certification, Rule 23(b)(a) states:
[F]our threshold requirements applicable to all class actions: (1) numerosity (a class [so large] that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties’ claims or defenses are

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typical . . . of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class).
Amchem, 521 U.S. at 613. If the party certification fails to meet any of these four requirements, class certification is precluded. Harriston v. Chi. Trib. Co., 992 F.2d 697, 703 (7th Cir. 1993) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)).
The district court denied class certification with respect to the reduction based on a failure to satisfy the typicality requirement. The court explained: “[c]laims of inadequate medical care by their nature require individual determinations, as the level of medical care required to comport with constitutional and statutory standards will vary depending on each inmate’s circumstances, such as preexisting medical conditions.”
In response, Appellants rely on Smentek v. Sheriff of Cook County, No. 09 C 529, 2010 U.S. Dist. LEXIS 122145 (N.D. Ill. Nov. 18, 2010). In Smentek, a putative class action was brought on behalf of prisoners who were denied adequate dental care, in violation of 42 U.S.C. § 1983, after the number of dental staff were reduced at the jail. Smentek, 2010 U.S. Dist. LEXIS 122145, at *1-2. In that case, evidence was presented to show that all plaintiffs had “experienced dental pain and significant delays in treatment, if [they were] treated at all.” Smentek, 2010 U.S. Dist. LEXIS 122145, at *2. Appellants highlight similarities between Smentek and the instant case and argue that because the court in Smentek certified the class, the court below abused its discretion by not following suit. We

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disagree. Though some similarities may exist between the two cases, the district court’s decision in Smentek was based on fact-specific findings that differ from the instant case. In no way does the Smentek decision govern Appellants’ case nor does it indicate an abuse of discretion on the part of the district court.

B. Summary Judgment
Appellants argue the district court improperly granted summary judgment denying their claims for injunctive relief. The district court ruled that they failed to present sufficient evidence to create a genuine issue of fact because Appellants could not establish the existence of current and ongoing constitutional violations at the jail.
According to Appellants, during their detention inside the jail, inmates were subjected to conditions of confinement that violated their constitutional rights. Appellants claimed: inmates arrived at the jail and were held anywhere from 6 to 18 hours without food or water in a 15’ x 15’ holding cell with 20-30 other inmates and one toilet without running water or a working sink; when moved from the initial holding cell, inmates were placed in a bigger room with 100-150 inmates for up to 6 to 8 days without beds and with only one toilet and sink while awaiting dorm assignments; 8’ x 8’ segregation cells that housed three inmates at one time; there was mold in shower and sink areas as well as in heating and air conditioning vents; there were gnats in the dorm and toilet areas, as well as around trash containers; and inmates were subject to medical intake sessions in which

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they were forced to reveal personal medical histories in front of, or within earshot of, other inmates in violation of HIPAA.
In response, CCA presented an affidavit from 2011 in which the jail warden testified that measures had been taken to remedy the aforementioned problems in 2008 and 2009, after the Appellants had left the jail. Appellants do not dispute these remedial measures were taken.
As the district court properly stated, under § 1983, declaratory or injunctive relief is only proper if there is a continuing violation of federal law. Green v. Mansour, 474 U.S. 64, 73 (1985). “When there is no continuing violation of federal law, injunctive relief is not part of a federal court’s remedial powers.” Al-Alamin v. Gramley, 926 F.2d 680, 685 (7th Cir. 1991). Therefore, due to the lack of evidence of any ongoing constitutional violations, the district court had no choice. The grant of summary judgment was proper.

C. Appellants’ Motion to Amend Judgment
After the district court’s entry of summary judgment in favor of CCA, Appellants filed a motion to amend judgment; it was denied. On appeal, Appellants assert that the district court erred when it concluded that the Appellants failed to create a genuine issue of material fact as to whether the conditions of confinement rose to the level of a constitutional violation or that CCA acted with deliberate indifference. Appellants claim the district court improperly equated the law of pre-trial

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detainees (which prohibits punishment) with that of prisoners (which prohibits cruel and unusual punishment). This argument is without merit. In its order, the district court stated “[a]lthough [it] remains unconvinced that the conditions in [the jail] are severe enough to constitute constitutional violations, even assuming that the conditions are severe enough[,] . . . the evidence before the court shows that defendants were not deliberately indifferent to the conditions.” In a corresponding footnote, the district court simply noted that although prisoners are protected under the Eighth Amendment and pre-trial detainees are protected under the Due Process Clause of the Fourteenth Amendment, the same standard for identifying deliberate indifference applies; for such an analysis to be properly made, it would not matter whether the inmates in question were pre-trial detainees or prisoners. This comparison was by no means the basis on which the court denied injunctive relief and granted summary judgment, nor was it the basis for the court’s denial of the motion to amend judgment.

III. CONCLUSION
For the forgoing reasons, we AFFIRM the judgment of the district court.

9-14-12

 
 Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 1 of 15
CMP,MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:08−cv−00431−LJM−DML

KRESS et al v. CCA OF TENNESSEE, LLC et al Assigned to: Judge Larry J. McKinney Referred to: Magistrate Judge Debra McVicker Lynch Case in other court: 7th Circuit, 11−02947
7th Circuit, 11−02950 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 04/02/2008 Date Terminated: 04/13/2011 Jury Demand: None Nature of Suit: 555 Prisoner Petitions − Prison Condition Jurisdiction: Federal Question

ALAN KRESS on their own behalf and on behalf of a class of those similarly situated

represented by Adam Lenkowsky ROBERTS &BISHOP 118 North Delaware Street Indianapolis, IN 46204 (317) 631−0172 Fax: (317) 631−0178 Email: alenkowsky@roberts−bishop.com ATTORNEY TO BE NOTICED

Kenneth T. Roberts ROBERTS &BISHOP 118 North Delaware Street Indianapolis, IN 46204 (317) 631−0172 Fax: (317) 631−0178 Email: ktrjustice@aol.com ATTORNEY TO BE NOTICED

Paul K. Ogden OGDEN LAW OFFICE 3525 W. 55th St Indianapolis, IN 46228 317/297−9720 Email: pogden297@comcast.net ATTORNEY TO BE NOTICED

Tasha Rebecca Roberts ROBERTS AND BISHOP 118 North Delaware Street Indianapolis, IN 46204 (317) 631−0172 Fax: (317) 631−0178 Email: troberts@roberts−bishop.com ATTORNEY TO BE NOTICED

Plaintiff
BILLY FORD on their own behalf and on behalf of a class of those similarly situated

represented by Adam Lenkowsky (See above for address) ATTORNEY TO BE NOTICED

Kenneth T. Roberts (See above for address) ATTORNEY TO BE NOTICED

Paul K. Ogden (See above for address) ATTORNEY TO BE NOTICED

Tasha Rebecca Roberts

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 2 of 15

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
RANDY CARR on their own behalf and on behalf of a class of those similarly situated

represented by Adam Lenkowsky (See above for address) ATTORNEY TO BE NOTICED

Kenneth T. Roberts (See above for address) ATTORNEY TO BE NOTICED

Paul K. Ogden (See above for address) ATTORNEY TO BE NOTICED

Tasha Rebecca Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
TIMOTHY−PATRICK TREACY on their own behalf and on behalf of a class of those similarly situated

represented by Adam Lenkowsky (See above for address) ATTORNEY TO BE NOTICED

Kenneth T. Roberts (See above for address) ATTORNEY TO BE NOTICED

Paul K. Ogden (See above for address) ATTORNEY TO BE NOTICED

Tasha Rebecca Roberts (See above for address) ATTORNEY TO BE NOTICED

V. Defendant CCA OF TENNESSEE, LLC doing business as CORRECTIONS CORPORATION OF AMERICA
Defendant MARION COUNTY SHERIFF FRANK ANDERSON

represented by Michael Rosiello BARNES &THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 (317) 231−7270 Fax: (317) 231−7433 Email: mike.rosiello@btlaw.com ATTORNEY TO BE NOTICED
William A. Hahn BARNES &THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 (317) 231−7364 Fax: (317) 231−7433 Email: william.hahn@btlaw.com ATTORNEY TO BE NOTICED
represented by Anthony W. Overholt FROST BROWN TODD LLC 201 North Illinois Street, Suite 1900

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 3 of 15

P.O. Box 44961 Indianapolis, IN 46244−0961 (317) 237−3936 Fax: (317) 237−3900 Email: aoverholt@fbtlaw.com ATTORNEY TO BE NOTICED

Jennifer Lynn Haley Springer CITY OF INDIANAPOLIS, CORPORATION COUNSEL 200 E. Washington Street 1601 City−County Building Indianapolis, IN 46204 (317) 327−5432 Fax: (317) 327−3968 Email: jhaley@indy.gov ATTORNEY TO BE NOTICED

Defendant VIRGINIA LEE

represented by Michael Rosiello (See above for address) ATTORNEY TO BE NOTICED

William A. Hahn (See above for address) ATTORNEY TO BE NOTICED

Defendant TIMOTHY LITTLE

represented by Michael Rosiello (See above for address) ATTORNEY TO BE NOTICED

William A. Hahn (See above for address) ATTORNEY TO BE NOTICED

Defendant WARDEN JEFF CONWAY

represented by Michael Rosiello (See above for address) ATTORNEY TO BE NOTICED

William A. Hahn (See above for address) ATTORNEY TO BE NOTICED

Defendant DR. NEIL PROBST

represented by Michael Rosiello (See above for address) ATTORNEY TO BE NOTICED

William A. Hahn (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/02/2008
04/02/2008

# Docket Text
1 COMPLAINT against all defendants, filed by all plaintiffs.(DWH) (Entered: 04/03/2008)
2 CIVIL COVER SHEET, filed by Plaintiffs ALAN KRESS, BILLY FORD, ERIC STAGGS, TIMOTHY−PATRICK TREACY and RANDY CARR. (DWH) Modified on 4/3/2008 (DWH). (Entered: 04/03/2008)

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04/02/2008 04/02/2008 04/02/2008 04/07/2008 04/07/2008 04/17/2008 04/18/2008 04/18/2008 04/18/2008 04/20/2008
04/21/2008
04/21/2008
04/21/2008
04/24/2008 04/28/2008 04/30/2008

3 RECEIPT #IP006375 in the amount of $ 350.00 (DWH) (Entered: 04/03/2008)
4 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DWH) (Entered: 04/03/2008)
5 Summons Issued as to CCA OF TENNESSEE, LLC, and MARION COUNTY SHERIFF FRANK ANDERSON. (DWH) (Entered: 04/03/2008)
6 NOTICE of Appearance by Jonathan Lamont Mayes on behalf of Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Mayes, Jonathan) (Entered: 04/07/2008)
7 NOTICE of Parties' First Extension of Time, filed by Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Mayes, Jonathan) (Entered: 04/07/2008)
8 RETURN of Personal Service, filed by all plaintiffs. CCA OF TENNESSEE, LLC served on 4/2/2008; MARION COUNTY SHERIFF FRANK ANDERSON served on 4/2/2008. (Ogden, Paul) (Entered: 04/17/2008)
9 NOTICE of Appearance by William A. Hahn on behalf of Defendant CCA OF TENNESSEE, LLC. (Hahn, William) (Entered: 04/18/2008)
10 NOTICE of Appearance by Michael Rosiello on behalf of Defendant CCA OF TENNESSEE, LLC. (Rosiello, Michael) (Entered: 04/18/2008)
11 NOTICE of Parties' First Extension of Time, filed by Defendant CCA OF TENNESSEE, LLC. (Hahn, William) (Entered: 04/18/2008)
12 MOTION for Rule to Show Cause As To Why Defendant CCA and Warden Jeff Conway Should Not Be Held in Contempt and Sanctioned for Retaliation Against Named Plaintiffs, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Exhibit A (Affidavits of Named Plaintiffs), # 2 Text of Proposed Order Setting Hearing (Ogden, Paul) Modified on 4/21/2008 (LSC). (Entered: 04/20/2008)
13 Emergency MOTION to Order CCA to Immediately Transport Plaintiff Eric Staggs for Medical Review and Treatment, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Text of Proposed Order Order on Verified Emergency Motion to Order CCA to Immediately Transport Plaintiff Eric Staggs for Medical Review and Treatment)(Ogden, Paul) (Entered: 04/21/2008)
14 ORDER re 12 Motion for Rule to Show Cause − The motion does not identify a court order the defendants might have violated. The court proposes to treat pltfs' motion as one for a temporary restraining order with notice. SCHEDULING ORDER − Hearing on motion set for 4/29/2008 at 03:00 PM in room #344 before Judge David Frank Hamilton. The court will issue one or more orders to ensure that the named plaintiffs can be present (to testify if needed). Signed by Judge David Frank Hamilton on 4/21/2008.(LSC) (Entered: 04/21/2008)
15 Courtroom Minutes for proceedings held before Judge David F. Hamilton on 04/21/2008. Hearing held to address Emergency Motion to Order CCA to Immediately Transport Plaintiff Eric Staggs for Medical Review and Treatment; arguments presented, Dr. Propst testified; for the reasons stated on the record, the Court denied the Motion 13 . (CEB) (Entered: 04/21/2008)
16 ORDER to Produce Inmates at Court Proceeding on 4/29/2008 re defts KRESS, STAGGS, CARR, FORD and TREACY. Signed by Judge David Frank Hamilton on 4/24/2008. c/m(LSC) (Entered: 04/24/2008)
17 AMENDED COMPLAINT against all defendants, filed by all plaintiffs.(Ogden, Paul) (Entered: 04/28/2008)
18 Courtroom Minutes for hearing at which the Court (Judge David Frank Hamilton) denied 12 Motion for Rule to Show Cause as to Why Defendant CCA and Warden Jeff Conway Should Not Be Held in Contempt and Sanctioned for Retaliation Againt Named Plaintiffs. Plaintiffs called as witnesses Jeff Conway, Amy Shovan,

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05/01/2008 05/05/2008 05/05/2008 05/12/2008 05/16/2008
05/17/2008 05/22/2008 05/22/2008 05/22/2008 05/22/2008 06/12/2008
06/12/2008 06/13/2008 06/18/2008
06/19/2008
06/26/2008

Alan Kress, Billy Ford, Dr. Neil Propst, Eric Staggs, Timothy−Patrick Treacy and Randy Carr; plaintiffs rested; defendant CCA called as witnesses Amy Shovan and Michelle Ryder; defendant CCA rested; arguments presented; motion denied. Court Reporter F. Pratt. (CEB) (Entered: 04/30/2008)
19 NOTICE of Filing of Motion for Consolidation by all plaintiffs (Attachments: # 1 Exhibit A − Motion for Consolidation) (Lenkowsky, Adam) (Entered: 05/01/2008)
20 NOTICE of Parties' First Extension of Time, filed by Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Mayes, Jonathan) (Entered: 05/05/2008)
21 Summons Issued as to VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST. (LSC) (Entered: 05/05/2008)
22 NOTICE to Court of Violation of Court's Rule Against Use of Camera Cell Phones, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR (Ogden, Paul) (Entered: 05/12/2008)
23 NOTICE Response to Plaintiffs' "Notice to Court of Violation of Court's Rule Against Use of Camera Cell Phone", filed by Defendants CCA OF TENNESSEE, LLC, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST, re 22 Notice (Other). (Hahn, William) (Entered: 05/16/2008)
24 AFFIDAVIT in Support of Notice to Court of Violation of Court's Rule Against Use of Camera Cell Phones by all plaintiffs. (Ogden, Paul) (Entered: 05/17/2008)
25 NOTICE of Appearance by Michael Rosiello on behalf of Defendants VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST. (Rosiello, Michael) (Entered: 05/22/2008)
26 NOTICE of Appearance by William A. Hahn on behalf of Defendants VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST. (Hahn, William) (Entered: 05/22/2008)
27 ANSWER to 17 Amended Complaint, filed by MARION COUNTY SHERIFF FRANK ANDERSON.(Mayes, Jonathan) (Entered: 05/22/2008)
28 ANSWER to Amended Complaint, filed by Defendants VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST. (Hahn, William) (Entered: 05/22/2008)
29 MOTION to Certify Class, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Text of Proposed Order)(Lenkowsky, Adam) (Entered: 06/12/2008)
30 BRIEF/MEMORANDUM in Support re 29 MOTION to Certify Class, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Lenkowsky, Adam) (Entered: 06/12/2008)
31 SCHEDULING ORDER: Initial Pretrial Conference set for 7/3/2008 08:30 AM in room #277 before Magistrate Judge William T. Lawrence. Signed by Magistrate Judge William T. Lawrence on 6/13/08.(JHO) (Entered: 06/13/2008)
32 MOTION for Extension of Time to file response to 29 MOTION to Certify Class , filed by Defendants CCA OF TENNESSEE, LLC, VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST, MARION COUNTY SHERIFF FRANK ANDERSON. (Attachments: # 1 Text of Proposed Order)(Rosiello, Michael) Modified on 6/19/2008 (LSC). (Entered: 06/18/2008)
33 ORDER granting 32 Defendants' motion for an enlargement of time to respond to Plaintiffs' Motion for Class Certification, to a date to be determined at the Initial Pretrial Conference scheduled for July 3, 2008. Signed by Magistrate Judge William T. Lawrence on 6/19/08. (TMA) (Entered: 06/19/2008)
34 CASE MANAGEMENT PLAN TENDERED, filed by Defendants CCA OF TENNESSEE, LLC, VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST, MARION COUNTY SHERIFF FRANK

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06/26/2008 07/01/2008 07/08/2008 07/09/2008 07/09/2008
07/13/2008
07/25/2008 08/01/2008 10/17/2008 10/24/2008 10/24/2008 10/25/2008 10/30/2008

ANDERSON. (Hahn, William) (Entered: 06/26/2008)
35 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Ogden, Paul) (Entered: 06/26/2008)
36 Entry for July 1, 2008 − The initial pretrial conf set for Thursday, July 3, 2008, at 8:30 a.m. is hereby vacated. (see entry). Signed by Judge William T. Lawrence on 7/1/2008.(MRI) (Entered: 07/01/2008)
37 Reassignment of Case to Magistrate Judge Tim A. Baker. Judge William T. Lawrence no longer assigned to the case. Please include the new case number (1:08−cv−431−DFH−TAB), which includes the initials of the newly assigned judge, on all future filings in this matter. (WMK) (Entered: 07/08/2008)
38 MOTION to Certify State Law Questions for Indiana Supreme Court, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Ogden, Paul) (Entered: 07/09/2008)
39 BRIEF/MEMORANDUM in Support re 38 MOTION to Certify State Law Questions for Indiana Supreme Court, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Exhibit A (State Regulation − Grievance Policy), # 2 Exhibit B (State Regulation − Mail Procedure), # 3 Exhibit C (CCA Grievance Policy), # 4 Exhibit D (CCA Mail Policy), # 5 Exhibit E (Sheriff's Grievance Policy), # 6 Exhibit F (Sheriff's Mail Policy))(Ogden, Paul) (Entered: 07/09/2008)
40 AMENDED BRIEF/MEMORANDUM in Support re 38 MOTION to Certify State Law Questions for Indiana Supreme Court Amended, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Exhibit A (Indiana Jail Grievance Regulation), # 2 Exhibit B (Indiana Jail Mail Handling Regulation, # 3 Exhibit C (CCA's Grievance Policy), # 4 Exhibit D (CCA's Mail Handling Policy), # 5 Exhibit E (Sheriff's Greivance Policy), # 6 Exhibit F (Sheriff's Mail Handling Policy))(Ogden, Paul) Modified on 7/14/2008 (LBK). (Entered: 07/13/2008)
41 RESPONSE in Opposition re 38 MOTION to Certify State Law Questions for Indiana Supreme Court, filed by Defendants CCA OF TENNESSEE, LLC, VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, DR. NEIL PROBST. (Hahn, William) (Entered: 07/25/2008)
42 REPLY in Support of Motion re 38 MOTION to Certify State Law Questions for Indiana Supreme Court to Certify State Law Questions for Indiana Supreme Court, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Ogden, Paul) (Entered: 08/01/2008)
43 ORDER denying 38 Plaintiffs' Motion to Certify State Law Questions. Signed by Judge David Frank Hamilton on 10/17/2008. (LBK) (Entered: 10/17/2008)
44 Reassignment of Case to Magistrate Judge Debra McVicker Lynch. Magistrate Judge Tim A. Baker no longer assigned to the case. Please include the new case number (1:08−cv−0431−DFH−DML), which includes the initials of the newly assigned judge, on all future filings in this matter. (TMA) (Entered: 10/24/2008)
45 MOTION for Reconsideration re 43 Order on Motion to Certify State Law Questions, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Ogden, Paul) (Entered: 10/24/2008)
46 MOTION to Dismiss Named Plaintiff Timothy−Patrick Treacy, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Text of Proposed Order Order on Motion to Dismiss Named Plaintiff)(Ogden, Paul) (Entered: 10/25/2008)
47 ORDER granting 46 Motion to Dismiss Plaintiff Timothy−Patrick Treacy as Named Plaintiff. Signed by Judge David Frank Hamilton on 10/30/2008. (LBK) (Entered: 10/30/2008)

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11/14/2008 11/14/2008 11/14/2008 11/18/2008 12/11/2008 01/08/2009 01/09/2009 01/12/2009 01/16/2009
02/02/2009 02/04/2009 02/19/2009 02/27/2009 03/02/2009 03/05/2009
03/05/2009

48 NOTICE to File Corporate Disclosure Statement to CCA OF TENNESSEE, LLC. (LAB) (LBK) (Entered: 11/14/2008)
49 ORDER denying 45 Motion for Reconsideration re 43 Order on Motion to Certify State Law Questions filed by RANDY CARR, ERIC STAGGS, TIMOTHY−PATRICK TREACY, ALAN KRESS, BILLY FORD. Signed by Judge David Frank Hamilton on 11/14/2008. (LBK) (Entered: 11/14/2008)
50 Corporate Disclosure Statement by CCA OF TENNESSEE, LLC identifying Corporate Parent CORRECTIONS CORPORATION OF AMERICA for CCA OF TENNESSEE, LLC.. (Hahn, William) (Entered: 11/14/2008)
51 MOTION for Recusal, filed by Plaintiffs ALAN KRESS, BILLY FORD, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Text of Proposed Order Order on Plaintiffs' Motion to Recuse)(Ogden, Paul) (Entered: 11/18/2008)
52 ORDER denying 51 Motion to Disqualify. Signed by Judge David Frank Hamilton on 12/11/2008. (LBK) (Entered: 12/11/2008)
53 SCHEDULING ORDER: Pretrial Conference set for 2/3/2009 04:30 PM in room #316 before Magistrate Judge Debra McVicker Lynch. Signed by Magistrate Judge Debra McVicker Lynch on 1/8/09. (TMA) (Entered: 01/09/2009)
54 SCHEDULING ORDER: Telephonic Scheduling Conference set for Monday, January 12, 2009, at 09:30 AM before Judge David Frank Hamilton. Issued by Judge David Frank Hamilton on 1/9/09.(WJC) (Entered: 01/09/2009)
55 Minute Entry for proceedings held before Judge David Frank Hamilton: Status Conference held on 1/12/2009. (WJC) (Entered: 01/13/2009)
56 MOTION to Reinstate Timothy−Patrick Treacy as Named Plaintiff, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Attachments: # 1 Affidavit of Tim Treacy (Exhibit A), # 2 Text of Proposed Order)(Ogden, Paul) Modified on 1/20/2009 (LBK). (Entered: 01/16/2009)
57 ENTRY on Case Management Issues. Briefing on Motion for Class Certification is STAYED (See Entry). Signed by Magistrate Judge Debra McVicker Lynch on 2/2/09. (TMA) (Entered: 02/02/2009)
58 Minute Entry for proceedings held before Magistrate Judge Debra McVicker Lynch: Pretrial Conference held on 2/3/09. (See Entry) (TMA) (Entered: 02/05/2009)
59 ENTRY on Discovery Issue raised at the 2/3/09 Pretrial Conference (S.E.). Signed by Magistrate Judge Debra McVicker Lynch on 2/19/2009.(MAC) (Entered: 02/19/2009)
60 ORDER granting 56 Motion to Reinstate Timothy−Patrick Treacy as Named Plaintiff. Signed by Judge David Frank Hamilton on 2/27/2009. (LBK) (Entered: 02/27/2009)
61 MOTION for Reconsideration re 59 Entry on Discovery Issue Raised at February 3, 2009 Pretrial Conference, filed by Plaintiffs ALAN KRESS, BILLY FORD, TIMOTHY−PATRICK TREACY, ERIC STAGGS, RANDY CARR. (Ogden, Paul) (Entered: 03/02/2009)
62 TRANSCRIPT of Proceedings held on 4−29−08, before Judge David Frank Hamilton. Court Reporter/Transcriber Fred Pratt, Telephone number (317) 916−8209. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Statement due 3/26/2009. Release of Transcript Restriction set for 6/3/2009. (Pratt, Fred) Released on 6/3/2009 (TLH). (Entered: 03/05/2009)
63 NOTICE of FILING of OFFICIAL TRANSCRIPT of Proceedings held before Judge David Frank Hamilton on 04−29−08. (Pratt, Fred) (Entered: 03/05/2009)

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04/13/2009 05/12/2009 05/13/2009 05/29/2009 06/19/2009 06/26/2009 09/11/2009 11/29/2009 02/24/2010 03/03/2010
03/15/2010 03/15/2010 03/15/2010 03/17/2010
03/17/2010

64 ORDER denying 61 Plaintiffs' Motion to Reconsider Court's Entry on Discovery Issue Raised at February 3, 2009 Pretrial Conference. (See Order) Signed by Magistrate Judge Debra McVicker Lynch on 4/13/2009. (TMA) (Entered: 04/14/2009)
65 MOTION Agreed Motion to Amend Hearing Briefing Schedule regarding Platintiffs' Exhaustion of Administrative Remedies, filed by Defendant CCA OF TENNESSEE, LLC. (Attachments: # 1 Text of Proposed Order Order Regarding Agreed Motion)(Hahn, William) (Entered: 05/12/2009)
66 ORDER granting 65 agreed motion by the parties seeking to enlarge the schedule for submitting hearing briefs by fourteen (14) days. (See Order.) Signed by Magistrate Judge Debra McVicker Lynch on 5/13/2009. (TMA) (Entered: 05/13/2009)
67 PRETRIAL MEMORANDUM by CCA OF TENNESSEE, LLC. (Hahn, William) (Entered: 05/29/2009)
68 TRIAL BRIEF REGARDING CCA'S FAILURE TO MAKE GRIEVANCE PROCESS AVAILABLE TO PLAINTIFFS by all plaintiffs. (Ogden, Paul) (Entered: 06/19/2009)
69 TRIAL BRIEF Reply by CCA OF TENNESSEE, LLC, VIRGINIA LEE, TIMOTHY LITTLE, WARDEN JEFF CONWAY, NEIL PROBST. (Hahn, William) (Entered: 06/26/2009)
70 NOTICE of Appearance by Anthony W. Overholt on behalf of Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Overholt, Anthony) (Entered: 09/11/2009)
71 Reassignment of Case to Judge Larry J. McKinney. Judge David Frank Hamilton no longer assigned to the case. Please include the new case number ( 1:08−cv−00431−LJM−DML), which includes the initials of the newly assigned judge, on all future filings in this matter. (TRG) (Entered: 11/29/2009)
72 SCHEDULING ORDER:The Court hereby SETS this matter for an evidentiary hearing on 3/17/2010 at 09:00 AM in room #202 before Judge Larry J. McKinney. Signed by Judge Larry J. McKinney on 2/24/2010.(TRG) (Entered: 02/24/2010)
73 SCHEDULING ORDER: The Court hereby VACATES the March 17, 2010, evidentiary hearing in this matter(Dkt. No. 72 ) and RESETS it for Thursday, March 18, 2010, at 10:30 a.m., Courtroom 202, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. Signed by Judge Larry J. McKinney on 3/3/2010.(TRG) (Entered: 03/05/2010)
74 ORDER to Produce Inmate at Court Proceeding − Superintendent ordered to produce Alan Kress on 3/18/2010. Signed by Judge Larry J. McKinney on 3/15/2010.(TRG) (Entered: 03/16/2010)
75 ORDER to Produce Inmate at Court Proceeding − Superintendent ordered to produce Randy Carr on 3/18/2010. Signed by Judge Larry J. McKinney on 3/15/2010.(TRG) (Entered: 03/16/2010)
76 ***VACATED PURSUANT TO ENTRY DATED 3/17/2010***ORDER to Produce Inmate at Court Proceeding − Superintendent ordered to produce Eric Staggs on 3/18/2010. Signed by Judge Larry J. McKinney on 3/15/2010.(TRG) Modified on 3/17/2010 (TRG). (Entered: 03/16/2010)
77 ENTRY Vacating Order to Produce Eric Staggs for Court Proceeding − The Order issued requiring the custodian of Eric Staggs, DOC #914569, to produce Mr. Staggs at a hearing to be conducted on March 18, 2010, is VACATED. No other order to produce issued for the production of any other inmate is affected by this Entry. Signed by Judge Larry J. McKinney on 3/17/2010.(TRG) (Entered: 03/17/2010)
78 STIPULATION, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY, Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, MARION COUNTY SHERIFF FRANK ANDERSON, NEIL PROBST.

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03/18/2010
03/22/2010 03/26/2010 04/05/2010 05/14/2010 05/18/2010 07/02/2010
07/14/2010 07/17/2010 07/17/2010 07/23/2010

(Attachments: # 1 Exhibit A − Marion County Sheriff's Grievance Procedure)(Lenkowsky, Adam) (Entered: 03/17/2010)
79 ENTRY for evidentiary hearing held before Judge Larry J. McKinney on 3/18/2010: Plaintiff, Eric Staggs, appeared by counsel, and plaintiffs, Alan Kress, Billy Ford, Timothy−Patrick Treacy, and Randy Carr, appeared in person and by counsel. Defendants, CCA of Tennessee, LLC d/b/a Corrections Corporation of America, Neil Probst, Timothy Little, and Marion County Sheriff Frank Anderson, appeared by counsel, and defendants, Warden Jeff Conway and Virginia Lee, appeared in person and by counsel. The Court heard testimony, admitted evidence, heard argument, and took the matter under advisement. The Court also took the admissibility of testimony previously given in a preliminary injunction hearing under advisement. (Court Reporter Cathy Jones.) (TRG) (Entered: 03/22/2010)
80 NOTICE of Additional Evidence Regarding Effect of Grievances on CCA's Accreditation, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY (Attachments: # 1 Exhibit 1 (ALDF Outcome Measure Worksheet)) (Ogden, Paul) (Entered: 03/22/2010)
81 RESPONSE re 80 Notice (Other) of Additional Evidence Regarding Effect of Greivances [sic] on CCA's Accreditation, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Hahn, William) (Entered: 03/26/2010)
82 NOTICE of Reply in Support of Submission of Additional Evidence, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY, re 80 Notice (Other). (Ogden, Paul) (Entered: 04/05/2010)
83 NOTICE of Substitution of Appearance by Marc Pe−Caine Sultzer replacing Jonathan L. Mayes on behalf of MARION COUNTY SHERIFF FRANK ANDERSON (Sultzer, Marc) (Entered: 05/14/2010)
84 ENTRY approving 83 Notice of Substitution of Appearance filed by MARION COUNTY SHERIFF FRANK ANDERSON. Attorney Jonathan Lamont Mayes terminated. Signed by Judge Larry J. McKinney on 5/18/2010. (Marginal Notation)(TRG) (Entered: 05/18/2010)
85 ORDER − The stay on discovery and briefing in this case (Dkt. No. 57) is LIFTED. A telephonic status conference is set before Magistrate Judge Lynch on Wednesday, July 21, 2010, at 10:30 a.m. Counsel shall call 317−229−3630. The parties shall confer and file a proposed Case Management Plan by Friday, July 16, 2010, which they shall be prepared to discuss at the status conference. The parties shall proceed in accordance with the foregoing findings of facts and conclusions of law. In addition, Defendants' motion to admit certain testimony that was given at the hearing held on Plaintiffs' Motion for Rule to Show Cause is DENIED AS MOOT. See order for specific details. Signed by Judge Larry J. McKinney on 7/2/2010.(REO) (Entered: 07/02/2010)
86 NOTICE of Appearance by Jennifer Lynn Haley on behalf of Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Haley, Jennifer) (Entered: 07/14/2010)
87 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY, Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, MARION COUNTY SHERIFF FRANK ANDERSON, NEIL PROBST. (Ogden, Paul) (Entered: 07/17/2010)
88 NOTICE Regarding Case Managment Plan, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY, re 87 Case Management Plan Tendered by. (Ogden, Paul) (Entered: 07/17/2010)
89 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED. Discovery due by 12/1/2010. Dispositive Motions due by 1/5/2011. Signed by Magistrate Judge Debra McVicker Lynch on 7/23/2010. c/m (TMA) (Entered:

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07/23/2010 07/23/2010
08/05/2010 08/15/2010 08/18/2010 08/18/2010 08/20/2010 08/27/2010 08/30/2010 09/23/2010 10/04/2010 10/12/2010 10/12/2010

07/23/2010)
90 Minute Entry for proceedings held before Magistrate Judge Debra McVicker Lynch: Telephone Status Conference held on 7/21/2010. Telephonic Status Conference set for 10/7/2010 09:30 AM before Magistrate Judge Debra McVicker Lynch. Signed by Magistrate Judge Debra McVicker Lynch. (TMA) (Entered: 07/23/2010)
91 SCHEDULING ORDER: Having approved the Case Management Plan as amended, the Court hereby sets the Bench Trial to begin on Monday, July 11, 2011, at 9:00 a.m., in Courtroom 202, and the Final Pretrial Conference for Friday, June 24, 2011, at 10:00 a.m., in Room 204, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana, at which time counsel shall be prepared to fully discuss the status of the action, including all matters requiring completion preparatory to trial. Signed by Judge Larry J. McKinney on 7/23/2010.(REO) (Entered: 07/23/2010)
92 MOTION for Permanent Injunction on the Issue of Grievances and to Set Dates Regarding Filing of Fee Petition, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS. (Attachments: # 1 Text of Proposed Order)(Ogden, Paul) (Entered: 08/05/2010)
93 MOTION to File Belated Witness and Exhibit List, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Preliminary Witness and Exhibit List)(Ogden, Paul) (Entered: 08/15/2010)
94 ORDER: GRANTED 93 Motion. The witness and exhibit list attached to Plaintiffs' Motion is ordered filed with this Court. Signed by Judge Larry J. McKinney on 8/18/2010. (DWH) (Entered: 08/18/2010)
95 Witness List and Exhibit List, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY. (DWH) (Entered: 08/18/2010)
96 RESPONSE in Opposition re 92 MOTION for Permanent Injunction on the Issue of Grievances and to Set Dates Regarding Filing of Fee Petition, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Exhibit Exhibit 1: Affidavit of Warden Jeff Conway)(Hahn, William) (Entered: 08/20/2010)
97 NOTICE Regarding Plaintiff Eric Staggs, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS (Ogden, Paul) (Entered: 08/27/2010)
98 REPLY in Support of Motion re 92 MOTION for Permanent Injunction on the Issue of Grievances and to Set Dates Regarding Filing of Fee Petition, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS. (Ogden, Paul) (Entered: 08/30/2010)
99 Unopposed MOTION for Extension of Time to October 8, 2010 to file response to 29 MOTION to Certify Class, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Text of Proposed Order Proposed Order)(Hahn, William) (Entered: 09/23/2010)
100 ORDER granting 99 Motion for Extension of Time to File Response to 29 MOTION to Certify Class. Defendants' response to Plaintiffs' motion for class certification is now due on or before October 8, 2010. Signed by Judge Larry J. McKinney on 10/4/2010. (REO) (Entered: 10/04/2010)
101 MOTION to Dismiss Eric Staggs as Named Plaintiff, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS. (Attachments: # 1 Text of Proposed Order)(Ogden, Paul) (Entered: 10/12/2010)
102 NOTICE Regarding Plaintiff Billy Ford, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS (Ogden, Paul) (Entered: 10/12/2010)

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 11 of 15

10/14/2010 10/15/2010
10/18/2010 10/22/2010 11/08/2010 11/16/2010 11/16/2010 12/01/2010 12/01/2010
12/02/2010 12/10/2010 12/21/2010

103 Unopposed MOTION for Extension of Time to 10/22/10 to file response to 29 MOTION to Certify Class, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Text of Proposed Order Proposed Order on Motion for Enlargment)(Hahn, William) (Entered: 10/14/2010)
104 Minute Entry for proceedings held before Magistrate Judge Debra McVicker Lynch: Telephone Status Conference held on 10/7/10. The time for the defendants' response to the motion for class certification is extended to 10/15/10; the plaintiffs' reply is due 11/01/10. Plaintiff Staggs will file a motion to dismiss his claim; plaintiff Ford withdraws his request to be a class representative. The remaining proposed class representatives are Mr. Kress and Mr. Carr. Signed by Magistrate Judge Debra McVicker Lynch. (TMA) (Entered: 10/15/2010)
105 ORDER granting 103 Motion for Extension of Time to File Response to 10/22/2010 re 29 MOTION to Certify Class. Signed by Magistrate Judge Debra McVicker Lynch on 10/18/2010. (TMA) (Entered: 10/19/2010)
106 RESPONSE in Opposition re 29 MOTION to Certify Class, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Exhibit Affidavit of Warden Jeff Conway, # 2 Exhibit Deposition of Alan Lynn Kress, # 3 Exhibit Deposition of Randy Carr)(Hahn, William) (Entered: 10/22/2010)
107 REPLY in Support of Motion re 29 MOTION to Certify Class, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Attachments: # 1 Exhibit A (Carr Deposition), # 2 Exhibit B (Kress Deposition), # 3 Exhibit C (Transcript of April 29, 2008 Hearing))(Ogden, Paul) (Entered: 11/09/2010)
108 ORDER granting 101 MOTION to Dismiss Eric Staggs as Named Plaintiff. ERIC STAGGS terminated. Signed by Judge Larry J. McKinney on 11/16/2010.(REO) (Entered: 11/16/2010)
109 ORDER − Plaintiffs' Motion for the Entry of an Injunction on the Issue of Grievances and to set Dates Regarding the Filing of a Fee Petition 92 is DENIED. In addition, Counts Five, Six, and Fifteen of Plaintiffs' Amended Complaint, alleging that Defendants violated the grievance processes in the PLRA and Indiana Jail Standards, are DISMISSED. Signed by Judge Larry J. McKinney on 11/16/2010. (REO) (Entered: 11/16/2010)
110 MOTION for Extension of Time to 40 days after ruling on pending motion for class certification for fact discovery, filed by Defendant CCA OF TENNESSEE, LLC. (Attachments: # 1 Text of Proposed Order)(Hahn, William) (Entered: 12/01/2010)
111 ORDER granting in part and denying in part 29 Motion to Certify Class − Class Certification is GRANTED as to Counts Three, Four, Ten, Twelve, Fourteen, Eighteen, and Twenty and DENIED as to all other Counts of Plaintiffs' Amended Complaint. The Court will conditionally certify a class as follows: "Any and all persons currently, or who will be in the future, confined in the Jail #2 facility." Counts One, Two, Seven, Eight, Nine, Eleven, Thirteen, Sixteen, Seventeen, and Nineteen are DISMISSED in theirentirety. Additionally, all of Plaintiffs' claims in their individual capacities under Counts Three, Four, Ten, Twelve, Fourteen, Eighteen, and Twenty are DISMISSED as moot. Signed by Judge Larry J. McKinney on 12/1/2010. (See order for further details.) (REO) (Entered: 12/02/2010)
112 ORDER granting 110 agreed motion to enlarge the fact discovery period thru 1/11/11. Signed by Magistrate Judge Debra McVicker Lynch on 12/2/2010. (TMA) (Entered: 12/03/2010)
113 MOTION for Reconsideration re 111 Order on Motion to Certify Class as to Facility−Wide Order to Eliminate Third Pill Call Round, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Ogden, Paul) (Entered: 12/10/2010)
114 RESPONSE in Opposition re 113 MOTION for Reconsideration re 111 Order on Motion to Certify Class as to Facility−Wide Order to Eliminate Third Pill Call Round, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY,

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 12 of 15

12/31/2010
01/03/2011 01/06/2011 01/06/2011 01/20/2011
01/21/2011 01/25/2011 01/28/2011
01/28/2011 02/28/2011 03/14/2011 04/01/2011

VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Exhibit Exhibit A − Affidavit of Neil Propst, # 2 Exhibit Exhibit B − Alan Kress Deposition Excerpts)(Hahn, William) (Entered: 12/21/2010)
115 REPLY in Support of Motion re 113 MOTION for Reconsideration re 111 Order on Motion to Certify Class as to Facility−Wide Order to Eliminate Third Pill Call Round and REquest for Sanctions for CCA Defendants' Perjured Deposition Testimony, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Attachments: # 1 Exhibit A (Dr. Probst's Deposition), # 2 Exhibit B (Little's Deposition))(Ogden, Paul) (Entered: 12/31/2010)
116 Unopposed MOTION for Extension of Time to January 24, 2011 for Dispositive Motions Deadline, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Text of Proposed Order Order on Agreed Motion for Enlargement of Dispositive Motions Deadline)(Hahn, William) (Entered: 01/03/2011)
117 ORDER granting 116 Motion for Extension of Time to File − dispositive motions are now to be filed on or before January 24, 2011. Signed by Judge Larry J. McKinney on 1/6/2011. (REO) (Entered: 01/06/2011)
118 RESPONSE in Opposition re 113 MOTION for Reconsideration re 111 Order on Motion to Certify Class as to Facility−Wide Order to Eliminate Third Pill Call Round Motion for Sanctions, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Hahn, William) (Entered: 01/06/2011)
119 Unopposed MOTION for Extension of Time to January 28, 2011 for Dispositive Motions Deadline, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Text of Proposed Order Proposed Order on Agreed Motion for Four Day Enlargment of Dispositive Motions Deadline)(Hahn, William) (Entered: 01/20/2011)
120 ORDER granting 119 Motion for Extension of Time to File. Dispositive motions are now to be filed on or before January 28, 2011. Signed by Judge Larry J. McKinney on 1/21/2011. (REO) (Entered: 01/24/2011)
121 ORDER denying 113 Motion for Reconsideration. Signed by Judge Larry J. McKinney on 1/25/2011. (See order for specific details.) (REO) (Entered: 01/27/2011)
122 MOTION for Summary Judgment, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Attachments: # 1 Exhibit A − Plaintiff Alan Kress Response to CCA's Second Set of Interrogatories, # 2 Exhibit B − Plaintiff Randy Carr's Response to CCA's Second Set of Interrogatories, # 3 Exhibit C − Randy Carr Deposition Excerpts, # 4 Exhibit D − Affidavit of Warden Jeff Conway, # 5 Exhibit E − Alan Kress Deposition Excerpts)(Hahn, William) (Entered: 01/28/2011)
123 BRIEF/MEMORANDUM in Support re 122 MOTION for Summary Judgment, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Hahn, William) (Entered: 01/28/2011)
124 RESPONSE in Opposition re 122 MOTION for Summary Judgment, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Attachments: # 1 Exhibit A (Carr Deposition), # 2 Exhibit B (Kress Affidavit), # 3 Exhibit C (Harkness Affidavit), # 4 Exhibit D (Treacy Affidavit))(Ogden, Paul) (Entered: 02/28/2011)
125 REPLY in Support of Motion re 122 MOTION for Summary Judgment, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Hahn, William) (Entered: 03/14/2011)
126 MOTION for Extension of Time to April 7, 2011, filed by Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Attachments: # 1 Text of Proposed Order)(Sultzer, Marc) (Entered: 04/01/2011)

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 13 of 15

04/01/2011 04/04/2011 04/06/2011 04/08/2011
04/08/2011 04/13/2011 04/13/2011
05/11/2011 05/11/2011 05/25/2011
06/06/2011 06/06/2011 07/26/2011 08/24/2011 08/24/2011

127 Exhibit List, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST, Witness List, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Hahn, William) (Entered: 04/01/2011)
128 MOTION for Leave to File Final Witness and Exhibit List, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS, ERIC STAGGS, TIMOTHY−PATRICK TREACY. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Lenkowsky, Adam) (Entered: 04/04/2011)
129 Exhibit List Final, filed by Defendant MARION COUNTY SHERIFF FRANK ANDERSON, Witness List Final, filed by Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Sultzer, Marc) (Entered: 04/06/2011)
130 ORDER granting 128 Motion for Leave to File BELATED FINAL WITNESS AND EXHIBIT LIST. This court having considered said motion and being otherwise duly advised in the premises, grants said Motion. The witness and exhibit list attached to Plaintiffs' Motion is ordered filed with this Court. Signed by Judge Larry J. McKinney on 4/08/2011. (REO) (Entered: 04/12/2011)
131 Final Witness and Exhibit List, filed by Plaintiffs RANDY CARR, BILLY FORD, ALAN KRESS.(REO) (Entered: 04/12/2011)
132 ORDER − Defendants' Motion for Summary Judgment 122 is GRANTED in its entirety. Judgment shall issue accordingly. Signed by Judge Larry J. McKinney on 4/13/2011. (See order for specific details.) (REO) (Entered: 04/14/2011)
133 CLOSED JUDGMENT − Through an Order dated April 13, 2011, the Court granted summary judgment in favor of defendants, CCA of Tennessee, LLC et al, and against plaintiffs, Alan Kress and Randy Carr on behalf of a class of those similarly situated, on plaintiffs' complaint under 42 U.S.C. § 1983. Judgment is entered accordingly. Signed by Judge Larry J. McKinney on 4/13/2011.(REO) (Entered: 04/14/2011)
134 MOTION to Amend/Correct 132 Order on Motion for Summary Judgment, 133 Closed Judgment, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Attachments: # 1 Text of Proposed Order)(Ogden, Paul) (Entered: 05/11/2011)
135 BRIEF/MEMORANDUM in Support re 134 MOTION to Amend/Correct 132 Order on Motion for Summary Judgment, 133 Closed Judgment, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Attachments: # 1 Exhibit A (Roberts and Bishop Attorney Bill))(Ogden, Paul) (Entered: 05/11/2011)
136 RESPONSE in Opposition re 134 MOTION to Amend/Correct 132 Order on Motion for Summary Judgment, 133 Closed Judgment and Petition for Attorneys' Fees, filed by Defendants CCA OF TENNESSEE, LLC, JEFF CONWAY, VIRGINIA LEE, TIMOTHY LITTLE, NEIL PROBST. (Hahn, William) (Entered: 05/25/2011)
137 NOTICE of Additional Authority, filed by Plaintiffs RANDY CARR, ALAN KRESS, re 135 Brief/Memorandum in Support of Motion. (Ogden, Paul) (Entered: 06/06/2011)
138 REPLY in Support of Motion re 134 MOTION to Amend/Correct 132 Order on Motion for Summary Judgment, 133 Closed Judgment, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Ogden, Paul) (Entered: 06/06/2011)
139 ORDER denying Plaintiffs' 134 Motion to Amend in its entirety. The 4/13/2011 Order granting summary judgment to Defendants remains in effect (S.O.). Signed by Judge Larry J. McKinney on 7/26/2011. (MAC) (Entered: 07/26/2011)
140 NOTICE OF APPEAL as to 139 Order on Motion to Amend/Correct, 132 Order on Motion for Summary Judgment, 133 Closed Judgment, filed by Plaintiffs RANDY CARR, ALAN KRESS. Filing fee $ 455, receipt number 0756−2075212. (Ogden, Paul) (Entered: 08/24/2011)
141 DOCKETING STATEMENT by RANDY CARR, ALAN KRESS re 140 Notice of Appeal (Ogden, Paul) (Entered: 08/24/2011)

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 14 of 15

08/25/2011 08/25/2011 08/25/2011
08/25/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 09/08/2011 09/08/2011 09/16/2011
09/21/2011
10/19/2011 11/02/2011 11/23/2011

142 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 140 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 08/25/2011)
143 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 140 Notice of Appeal. − for Court of Appeals Use Only. (TMA) (Entered: 08/25/2011)
144 NOTICE OF APPEAL as to 139 Order on Motion to Amend/Correct, 111 Order on Motion to Certify Class, 132 Order on Motion for Summary Judgment, 121 Order on Motion for Reconsideration, 133 Closed Judgment, filed by Plaintiffs RANDY CARR, ALAN KRESS. (Ogden, Paul) Modified on 9/22/2011 (WJC). (Entered: 08/25/2011)
145 DOCKETING STATEMENT by RANDY CARR, ALAN KRESS re 144 Notice of Appeal (Ogden, Paul) (Entered: 08/25/2011)
146 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 144 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 08/26/2011)
147 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 144 Notice of Appeal. − for Court of Appeals Use Only. (TMA) (Entered: 08/26/2011)
148 USCA Case Number 11−2947 for 140 Notice of Appeal filed by RANDY CARR, ALAN KRESS. (TMA) (Entered: 08/26/2011)
149 USCA Case Number 11−2950 for 144 Notice of Appeal filed by RANDY CARR, ALAN KRESS. (Attachments: # 1 Circuit Rule 3(b) Notice)(TMA) (Entered: 08/26/2011)
150 DESIGNATION of Record on Appeal by RANDY CARR, ALAN KRESS re 144 Notice of Appeal (Attachments: # 1 Designation of Documents)(Ogden, Paul) (Entered: 09/08/2011)
151 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by PLTFS re 144 Notice of Appeal−Not ordering a transcript (CBU) (Entered: 09/12/2011)
152 ****MANDATE IS RECALLED AND THE APPEAL IS REINSTATED***MANDATE of USCA as to 144 Notice of Appeal filed by RANDY CARR and ALAN KRESS is dismissed for failure to timely pay the required docketing fee (Attachments: # 1 Certified Copy of Final Order)(CBU) Modified on 9/22/2011 (CBU). (Entered: 09/19/2011)
153 MANDATE of USCA as to 140 Notice of Appeal filed by RANDY CARR and ALAN KRESS−Counsel for the appellants has filed motions to dismiss the appeal, reinstate the second and transfer the filing fee and those motions are granted. The mandate in appeal 11−2950 is RECALLED and the appeal is REINSTATED. Appeal 11−2947 is voluntarily dismissed. (Attachments: # 1 Cert Copy of Order)(CBU) (Entered: 09/22/2011)
154 MOTION to Withdraw Appearance of Marc Pe−Caine Sultzer, filed by Defendant MARION COUNTY SHERIFF FRANK ANDERSON. (Attachments: # 1 Text of Proposed Order)(Haley, Jennifer) (Entered: 10/19/2011)
155 ORDER granting 154 Motion to Withdraw appearance of Marc Pe−Caine Sultzer on behalf of the deft−Marion County Shefiff Frank Anderson. Signed by Judge Larry J. McKinney on 11/2/2011. (CBU) (Entered: 11/02/2011)
156 ORDER of USCA as to 140 Notice of Appeal filed by RANDY CARR, ALAN KRESS − Upon consideration of the MOTION TO DISMISS APPELLANTS BILLY FORD AND TIMOTHY−PATRICK TREACY, filed on November 14, 2011, by counsel for the appellants, IT IS ORDERED that this appeal is DISMISSED, in accordance with Federal Rule of Appellate Procedure 42(b), ONLY AS TO APPEALLANTS BILLY FORD AND TIMOTHY−PATRICK TREACY. THIS APPEAL REMAINS ACTIVE as to the other parties. (TMA) (Entered: 11/23/2011)

Case: 1:08-cv-431 As of: 01/13/2013 09:59 AM EST 15 of 15

01/03/2012 01/03/2012 10/09/2012

157 Certified and Transmitted Record on Appeal to US Court of Appeals, via email, re 144 Notice of Appeal. (TMA) (Entered: 01/03/2012)
158 Appeal Remark re 144 Notice of Appeal : Long record received and docketed by the USCA. (TMA) (Entered: 01/03/2012)
159 MANDATE of USCA as to 144 Notice of Appeal filed by RANDY CARR, ALAN KRESS − The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. (TMA) (Entered: 10/10/2012)

Case #: 1:08−cv−00431−LJM−DML