' ·~
case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FT. WAYNE DNISION

o~ Jt··· I tli';

! 9

PH 12:

4 6

RICHARH TYSON, on his own behalf, and

)

on behalf of a class of those similarly situated, )

)

Plaintiff,

)

)

v.

)

)

GRANT COUNTY SHERIFF, in his official

)

capacity;

)

GRANT COUNTY COMMISSIONERS,

)

in their official capacities,

)

)

Defendants.

)

'' [
. .1.~:.-:a;cr

No.

1 1 0 7 C V 0 0 1 0 RL

COMPLAINT/CLASS ACTION

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introduction

1.

This is a complaint seeking declaratory and injunctive relief challenging the

unconstitutional and unlawful conditions of confinement at the Grant County Jail in Marion,

Indiana.

Jurisdiction

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, 2203 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 Constitution of the United States.

6.

This Court has jurisdiction of the supplemental state law claims pursuant to 28 U.S.C. §

1367

' . case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 2 of 9

Parties

7.

Richarh Tyson is an adult resident of Grant County, Indiana.

8. The office of the Grant County Sheriff is sued pursuant to Rule 25(d)(2) of the Federal

Rules of Civil Procedure.

9. The office of the Grant Count Commissioner is sued pursuant to Rule 25(d0(2) of the

Federal Rules of Civil Procedure.

Class action allegations

10. This action is brought by plaintiff on his 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.

11. The class is defined as:

any and all persons currently confined, or who will in the future be confined, in the Grant County Jail.

12. All the requirements of Rule 23(a) are met with regard to the class. Specifically:

a. The class is so numerous that joinder of all members is impractical. Although the capacity of the Grant County Jail is reported to be 274, the population exceeds that amount.

b. There are questions oflaw or fact common to the class: whether conditions in the Grant County Jail violated the United States Constitution and Indiana law.

c. The claims of the representative party is typical of those of the class.

d. The representative party will fairly and adequately represent the class.

13. The further requirements of Rule 23(b)(2) are met in that defendants, at all times, have

acted and/or have refused to act in a manner generally applicable to the class, thereby

making fmal injunctive and declaratory relief appropriate with respect to the class as a

whole.

2

case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 3 of 9
Legal Background 14. Indiana law provides that the sheriff of a county must "[t]ake care of the county jail and the prisoners there ...." Ind. Code§ 36-2-13-5(a)(7). 15. The county commissioner of each Indiana county, as the county's executive, have the statutory duty to "establish and maintain a ... county jail ...." Ind. Code § 36-2-2-34. This includes providing a jail and keeping it in good repair. Weatherholt v. Spencer County, 639 N.E.2d 354 (Ind.Ct.App. 1994). Factual allegations 16. The Grant County Jail has a rated capacity of 274 prisoners. However, there are only 258 beds in general population with there being also 14 medical isolation cell beds and 2 beds in temporary holding cells. 17. However, the Jail operates over this capacity virtually 100% of the time. 18. At the current time the population is above 290. However, in September of this year it averaged 340 prisoners. 19. At the time of the last inspection of the Jail by the Indiana Department of Correction, in November of 2006, the Jail had a population of 336 and was listed as being overcrowded 100% of the time. 20. Because of overcrowding, three prisoners are forced to sleep in two-prisoner cells. This means that there are prisoner who must sleep on the floors of cells in plastic tubs called "stack a bunks." 21. There are day areas outside of the cells and most prisoners are released to the day area during parts of the day, although during parts of the day the prisoners must be confined to their
3

.
case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 4 of 9
cells. 22. The Jail has a recreation area featuring both inside and outside recreation. However, recreation in these areas is infrequent. 23. Because of overcrowding, there is generally inadequate room in the day areas outside of the cells within which to engage in vigorous physical exercise. 24. The overcrowding increases tension and this in turn causes violence and fights between the prisoners. 25. Richarh Tyson has been confined in the Grant County Jail for 16 months. 26. While in the Jail he has been in a number of cell blocks. At times all the two-person cells where he has been confined had three prisoners in them. 27. At the current time he is in Cellblock 2-A. This is a block with 12 beds that is confining, as of January 15, 2007, 14 prisoners. 28. Mr. Tyson is offered recreation in the Jail's formal recreation areas only one time each week. 29. There is not room to exercise in Mr. Tyson's cell block because of the overcrowded conditions. 30. Because of the overcrowding and tensions caused by it, there are violent fights and confrontations between prisoners in the cell block. 31. There is only one correctional officer on Mr. Tyson's floor of the Hail. The floor contains four cell blocks. 32. At the time of the last inspection of the Jail by the Indiana Department of Correction, in November of 2006, the inspector noted that there was not sufficient staffing for operation of the Jail.
4

case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 5 of 9
33. At times fights occur and correctional officers are unaware of them. There is only one camera in the cell block. 34. The overcrowding causes Mr. Tyson tension. He has difficulty in sleeping and has gained 25 pounds. He has been involved in fights in the Jail 35. Mr. Tyson believes the Jail has had, in the past, a five step grievance procedure, now four steps. Beginning early in 2006 Mr. Tyson filed his grievances and progressive appeals concerning overcrowding to all levels, ending with the Sheriff. A number of the grievances and appeals were not returned to him. Attached to this Complaint are his appeals to the second level (Lt. Lee) and third level (Captain Pauley). His appeals to the fourth level (Captain Himelick) and the fifth level to the Sheriff were not returned to him. Mr. Tyson went to the fifth level after not hearing from Captain Himelick. 36. On January 15, 2007, Mr. Tyson resubmitted the final appeal concerning overcrowding to the Sheriff inasmuch as the former fourth level grievance no longer exists. On January 17, 2007, the grievance was returned, marked "already answered." 37. There are no further grievance appeals that can be taken and therefore Mr. Tyson has exhausted all grievance procedures concerning overcrowding available to him prior to filing this complaint. 38. The conditions in the Grant County Jail result in the denial of basic human needs and the minimal civilized measures of life's necessities and amount to punishment. 39. Defendants have been on notice for some time concerning the deficiencies in the Jail but have failed to take the necessary steps to resolve the overcrowding and other problems. At all times defendants have acted in a deliberate and purposeful manner. 40. At all times the defendants have known of the risk of serious harm faced by plaintiff and
5

'

case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 6 of 9

the class and have failed to take reasonable measures to abate the risk. 41. The defendant County Commissioners have failed in their mandatory, non-discretionary duty to establish and maintain the county jail. 42. Defendant Sheriff has failed in his mandatory, non-discretionary duty, to take care of the Grant County Jail and the prisoners and detainees housed there. 43. The actions and inactions of the defendants are causing the plaintiff and the class irreparable harm for which there is no adequate remedy at law. 44. At all times defendants have acted under color of state law. Claims for Relief 45. The conditions at the Grant County Jail 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. 46. Defendant County Commissioners of Grant County, Indiana, have failed to maintain a county jail as required by Ind. Code § 36-2-2-24. 47. Defendant Sheriff has failed in his duty to care for prisoners confined to the Grant County Jail as required by Ind. Code § 36-2-13-5. 48. The overcrowding and other conditions at the Grant County Jail violate the Indiana County Jail standards, 210 lAC 3-1-1, et seq. Specifically, the Jail is deficient because:
a. There is not one bed for each prisoner as required by 210 lAC 3-1-7(g). b. The jail is not maintained in a safe and sanitary condition as required by 210 lAC
3-1-9. c. Inmates are denied the reasonable opportunity for physical exercise and recreation
as required by 210 lAC 3-1-15(e).

6

.,

- - - - - - - - - - - - - - - - - - - - - · - -----

case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 7 of 9

Request for Relief
WHEREFORE, plaintiff requests that this Court: I. Certify this cause as a class action with the class as defined above. 2. Declare that the actions and the inactions of the defendants violate the United States
Constitution and Indiana law for the reasons specified above. 3. Enter a preliminary injunction, later to be made permanent, requiring defendants to take
all steps necessary to operate the Jail in a manner free of constitutional infirmity. 4. Enter a preliminary injunction, later to be made permanent, requiring defendants to take
all steps necessary to comply with all of the duties owed to plaintiff and the class under Indiana law. 5. Award plaintiffs costs and reasonable attorney's fees pursuant to 42 U.S.C. § 1988. 6. Award all other just and proper relief.

Kenn
:tjo. 77-49
ACLU of Indiana 'I 03I E. Washington St. Indianapolis, IN 46202 3I7/635-4059 ext. 229 fax: 3I7/635-4I05 kfalk@aclu-in.org
Attorney for Plaintiff and Putative Class

7

case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 8 of 9
UNI'f·#· ~Q
GFANT COUNTY SECURITY COf,fPLEX
INMATR GRIEVANCF. FORM
DATE: ___._.a"-·-_} }Co
.,Q CELLBLOCK:_:;_: ____

\.)(.. (!q.l\1<$'+ Qc::.oJco( wf.....<:v.t f(Qsf't: _ol.o
.fk.,..-t J,-re.'-'8 M- -f-4> &=t-1 l~
l)t wi It c.o.n.:J~"l.l.)-<!., ""'1ft,. f'ht.... [tDe~~'-'k

\(Or- +"-«- !Sfre.e._-f.s ,.fhq,'.r

a.e+-

case 1:07-cv-00010-JVB-RBC document 1 filed 01/19/07 page 9 of 9

'U-'rr-·i' r~I+C

ount'.JJ ~)ecuritv Cornolex

J

/'-

lnrnatt:1 n ar1ce FonT!

~--------~----:-~-------

-------------------

--··----------

------ --------------------

Inmate Signatu

;J; rJil Reviewed . Repsonse:

6-7~t/d----::.-i-.·-

-

-

1-

-

-

-

.~ ..

.
/t!IM)#JdJ_{{l:

~~~.:::.r."""'b---.;,r-T-'-""~~'lkiid 1/dZ ~

 
 case 1:07-cv-00010-JVB-RBC document 24 filed 03/28/07 page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

RICHARH TYSON, on his own

)

behalf and on behalf of a

)

class of those similarly

)

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

GRANT COUNTY SHERIFF, in

)

his official capacity;

)

GRANT COUNTY COMMISSIONERS, )

in their official capacities; )

)

Defendants.

)

NO. 1:07-CV-0010

ORDER

This matter is before the Court on the “Petition for Temporarily Injunction,” filed by pro se Movant, Lloyd Brown, Jr. For the reasons set forth below, the Motion is DENIED.
On January 19, 2007, a class action complaint for declaratory and injunctive relief was filed in this case by Richarh Tyson, on his own behalf, and on behalf of those similarly situated. The complaint was filed by Kenneth Falk, as attorney for Plaintiff Richarh Tyson and putative class members. The complaint seeks to redress alleged unconstitutional and unlawful conditions of confinement at the Grant County Jail in Marion, Indiana, including
1

case 1:07-cv-00010-JVB-RBC document 24 filed 03/28/07 page 2 of 3
overcrowding, lack of recreational time, and insufficient staffing. Plaintiff filed a motion to certify the class on January 22, 2007, and that motion is currently pending before this Court.
Subsequently, pro se Movant, Lloyd Brown, Jr., wrote a letter to Kenneth Falk, counsel f or Plaintiff Richard Tyson and the putative class, claiming to be the “lay advocate” for the Grant County inmates, complaining about the prison conditions, and noting that Brown does not intend to remain a participant in the class action and plans to proceed alone. (Brown letter filed March 7, 2007.)
In the current motion filed in this case, Brown requests an injunction ordering the Grant County Jail staff to stop taking legal envelopes and materials addressed to Brown, and to provide legal access to the courts. Brown’s motion fails because he lacks standing. Brown is not a named party to this action (like Richarh Tyson or the named Defendants), nor has he filed an appearance in this case. The motion to certify the class was just recently briefed, and has not been ruled upon by this Court. Moreover, Brown has indicated that even if a class is certified in this case, he intends to opt out of the class. Finally, Brown’s claims in his motion for an injunction (that he is being denied legal envelopes and mail), are separate and distinct from the putative class claims in this case (overcrowding of the prison). Should Brown still wish to proceed with his claims that he is wrongfully being denied legal
2

case 1:07-cv-00010-JVB-RBC document 24 filed 03/28/07 page 3 of 3

envelopes and mail, he would need to file a separate complaint.

DATED: March 28, 2007

/s/ RUDY LOZANO, Judge United States District Court

3

 
 case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

RICHARH TYSON, on his own

)

behalf and on behalf of a

)

class of those similarly

)

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

GRANT COUNTY SHERIFF, in

)

his official capacity;

)

GRANT COUNTY COMMISSIONERS, )

in their official capacities; )

)

Defendants.

)

NO. 1:07-CV-0010

ORDER AND OPINION

This matter is before the Court on the: (1) Plaintiff’s Motion

for Class Certification, filed by Plaintiff, Richarh Tyson, on his

own behalf, and on behalf of a class of those similarly situated,

on January 22, 2007; and (2) Motion to Dismiss Supplemental State

Law Claims, filed by Defendants, Grant County Sheriff, in his

official capacity, and Grant County

Commissioners, in their

official capacities, on March 14, 2007. For the reasons set forth

below, the Motion for Class Certification isGRANTED. Accordingly,

a class consisting of “any and all persons currently confined, or

who will in the future be confined, in the Grant County Jail,” is

CERTIFIED. The Motion to Dismiss isGRANTED. The Clerk is ORDERED

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 2 of 26

to DISMISS Plaintiff’s state law claims

WITH PREJUDICE.

Plaintiff’s Constitutional claims REMAIN PENDING.

BACKGROUND On January 19, 2007, Plaintiff, Richarh Tyson, filed a class
action complaint for declaratory and injunctive relief against Defendants, Grant County Sheriff, in his official capacity, and Grant County Commissioners, in their official capacities. Plaintiff alleges that the Grant County Jail, in which he is currently incarcerated, is overcrowded, three prisoners are forced to sleep in two-prisoner cells, recreation is limited, the overcrowding has increased tension and violent fights between the prisoners, and staffing is insufficient. (Compl. ¶¶ 16-24, 30, 32.) Plaintiff alleges that the conditions at the Grant County Jail violate the 14th Amendment as applied to pre-trial detainees and the 8th Amendment as applied to convicted prisoners. (Id. ¶ 45.) Plaintiff sets forth a number of state law violations as well, including alleged violations of Indiana Code sections 36-2-224, 36-2-13-5, and 210 Indiana Administrative Code 3-1-7(g), 3-1-9, and 3-1-15(e). (Id. ¶¶ 46-48.)
In the instant motion to certify, Plaintiff seeks to certify a class consisting of “any and all persons currently confined, or who will in the future be confined, in the Grant County Jail.” Defendants object to the motion for class certification, arguing
2

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 3 of 26

Plaintiff failed to exhaust the requisite administrative remedies

under the Prison Litigation Reform

Act, because Plaintiff’s

grievances lacked the requisite specificity.

Additionally, Defendants have filed a motion to dismiss

Plaintiff’s state law claims. Defendants argue that there is no

private right of action for alleged violations of the Indiana Jail

Standards, thus, Plaintiff is foreclosed from seeking an injunction

and declaratory relief. Having been fully briefed, both motions

are ripe for adjudication.

DISCUSSION
Motion to Certify Class
The standards for class certification are well grounded and
set forth in Rule 23 of the Federal Rules of Civil Procedure. The
plaintiff must establish that:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common 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 representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). In addition, the plaintiff must establish
at least one prong of Rule 23(b). In this case, the second prong
is relevant, which provides that “the party opposing the class has
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or
3

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 4 of 26
corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2); see also Compl. ¶ 13. With these principles in mind, the Court can address the appropriateness of a class action in this case.
Numerosity As set forth above, Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Where the membership of a proposed class is at least forty, this Circuit has found joinder to be impracticable and the numerosity requirement to be met. Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969); Matz v. Household Int’l Tax Reduction Inv. Plan, 232 F.R.D. 593, 600 (N.D. Ill. 2005). Here, Plaintiff represents that the Grant County Jail has a rated capacity of 274 prisoners, but operates over that capacity virtually 100% of the time. (Compl. ¶¶ 16, 17.) Defendants do not dispute that numerosity exists. Therefore, Plaintiff has satisfied the numerosity requirement.
Commonality Rule 23(a)(2) requires Plaintiff to show that there are common questions of law or fact among the proposed class members. “Commonality generally exists when the defendant has engaged in ‘standardized conduct’ towards members of the proposed class.”
4

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 5 of 26
Murray v. Sunrise Chevrolet, Inc., No. 04 C 7668, 2006 WL 862886, at *2 (N.D. Ill. Mar. 30, 2006) (quotation omitted). Commonality in questions of law or fact is the only prong of the class certification test that Defendants dispute. Defendants argue that Plaintiff “only has a de minimus claim short of constitutional dimension” (Defs.’ Mem. In Opp. To Pl.’s Mot. To Certify Class, p. 5), and that the claim was not properly exhausted in accordance with the Prison Litigation Reform Act.
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides in relevant part that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail . . . until such administrative remedies as are available are exhausted.” Exhaustion of administrative remedies is a condition precedent to suit. Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). The PLRA exhaustion requirement requires “proper exhaustion,” meaning that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines. Woodford v. Ngo , 126 S. Ct. 2378, 2384 (2006). Exhaustion is an affirmative defense, and the burden of proof is on Defendants. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)).
Defendants do not contest that Plaintiff Tyson filed, and exhausted grievances claiming that the jail was overcrowded.
5

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 6 of 26
However, they argue that Tyson was not specific enough, and did not
complain that the overcrowding “resulted in any unconstitutional
deprivation.” (Defs.’ Mem. In Opp. To Pl.’s Mot. To Certify Class,
p. 2.) The first grievance submitted by Plaintiff on February 2,
2006, reads as follows:
We are overcrowded and have been since my arrival at this facility. I’ve had someone on my floor for over 2 months up until Feb 2nd. There are too many people in this block and the overcrowding is causing tension between the inmates. Also the lockdown from 12-3:30 is causing tension in the block. 3 people locked in a cell during the middle of the day practically on top of one another.
(Compl., p. 9.) The second grievance dated February 16, 2006,
states:
Would you please do something about the overcrowding in the jail. There’s too many people in these cell blocks. It’s causing too much stress and tension between inmates. The lockdown causes more stress, especially when there’s 3 to a cell. It’s affecting our food rations also. It seems like there’s not enough money in the county to properly house all these inmates. Sometimes there’s not even enough room for everyone to sit down and eat.
(Compl., p. 8.)
It is true, as Defendants stress, that overcrowding by itself
is not a violation of the Eight Amendment. See Rhodes v. Chapman,
452 U.S. 337, 345-350 (1981). However, a constitutional violation
is present when the conditions of the institution “deprive inmates
of the minimal civilized measure of life’s necessities” or when
they involve “unnecessary and wanton infliction of pain.” Id. at
6

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 7 of 26
346-47. Moreover, overcrowding can qualify as a constitutional violation when the effects of it, combined with other factors, “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Wilson v. Seiter , 501 U.S. 294, 304 (1991). The Seventh Circuit has found that overcrowding that leads to “unwholesome food, medical neglect and continuous threats to prisoners’ safety” can “constitute cruel and unusual punishment.” French v. Owens , 777 F.2d 1250, 1252 (7th Cir. 1985); see also Jensen v. Clarke , 94 F.3d 1191, 1195 (8th Cir. 1996) (finding overcrowding created a substantial risk of harm to inmates when the jail assigned them to cells randomly despite the threat posed by violent prisoners to their cellmates); Strickler v. Waters , 989 F.2d 1375, 1382 (4th Cir. 1993) (finding although overcrowding per se is not unconstitutional, it violates the Constitution if it results in the prisoners being denied identifiable human needs).
This Court disagrees with Defendants’ argument that Plaintiff’s grievances simply allege overcrowding in itself. Tyson specifically complains in his grievances that the overcrowding is “causing tension between the inmates,” “stress,” and “affecting our food rations.” (Compl. pp. 8-9.) This case is like Jensen v. County of Lake , in which this Court found that similar inmate allegations of overcrowding exhausted the PLRA. 958 F. Supp. 397 (N.D. Ind. 1997). In Jensen, this Court stated that:
7

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 8 of 26

Plaintiffs in this case do not complain simply of overcrowding. According to Plaintiffs, the conditions are such that fights and injuries to inmates are common and that it is very difficult for the jail personnel to ensure the safety of the inmates housed at the jail. In other words, that Defendants are subjecting the Plaintiffs to dangerous conditions.

Id. at 406. Similarly, in this case, the Court finds that the

allegations of tension, stress, and inadequate food surpass

complaints of mere overcrowding.

The Supreme Court has recently emphasized that the PLRA does

not require a hyper technical grievance. See Jones v. Bock, 127 S.

Ct. 910 (Jan. 22, 2007) (ruling that the PLRA does not impose a

“name all defendants” exhaustion requirement). Rather, the Jones

Court reasoned that:

Compliance with prison grievance procedures,

therefore, is all that is required by the PLRA to

“properly exhaust.” The level of detail necessary

in a grievance to comply with the grievance

procedures will vary from system to system and

claim to claim,

but it is the prison’s

requirements, and not the PLRA, that define the

boundaries of proper exhaustion.

Jones, 127 S. Ct. at 922-23. In this case, Defendants have put

forth no argument that Plaintiff failed to comply with the Grant

County Jail grievance procedure, nor is any such evidence before

the Court.

Drawing on principles of notice pleading, the Court of Appeals

for the Seventh Circuit has held that, absent more stringent

administrative requirements, an inmate need not “lay out the facts,

8

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 9 of 26
articulate legal theories, or demand particular relief,” so long as the grievance objects “intelligibly to some asserted shortcoming.” Strong v. David , 297 F.3d 646, 650 (7th Cir. 2002). As demonstrated in Riccardo v. Rausch, 375 F.3d 521 (7th Cir. 2004), this is not a rigorous standard. In Riccardo, the Court found the grievance adequately supported a prisoner’s section 1983 claim against a guard when he stated that “the administration don’t [sic.] do there [sic.] job. [A sexual assault] should’ve never [sic.] happen again.” Id. at 524. Although the Court acknowledged this language was ambiguous, it nevertheless judged it sufficiently specific because “[a] generous construction of this grievance would have induced the prison to consider the possibility that the guards could have prevented this assault.” Id. Exhaustion is satisfied if the grievance “served its function of alerting the state and inviting corrective action.” Id.
Here, Plaintiff’s grievances objected to overcrowding which resulted in dangerous inmate conditions. Contrary to Defendants’ bald claim that “[i]n a very real sense, the grievances are going to be presented for the first time in federal district court litigation,” (Defs.’ Mem. In Opp. To Pl.’s Mot. To Certify Class, p. 5), this Court believes that the Grant County Jail was put on proper notice of Plaintiff’s grievance that the jail was overcrowded which was resulting in tension and dangerous conditions for the inmates. Plaintiff’s grievances objected intelligibly to
9

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 10 of 26

the asserted shortcoming of overcrowding and the resulting problems of tension and stress between the inmates. The Court believes this is enough to satisfy the PLRA exhaustion requirement.

Typicality Rule 23(a)(3) demands that the claims of Plaintiff be typical of the class claims. A plaintiff’s claim is typical of a proposed class if “it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [is] based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Defendants do not contest that the proposed class has been subjected to the same practice as Plaintiff - overcrowding of the Grant County Jail. Therefore, the Court finds the requirement of typicality is met.

Adequacy of Representation

Rule 23(a)(4) requires that the Plaintiff will fairly and

adequately protect the interests of the class. This determination

has two facets. First, Plaintiff

must not have interests

antagonistic to the class. Rosario v. Livaditis, 963 F.2d 1013,

1018 (7th Cir. 1992). Second, Plaintiff’s counsel must be

qualified, experienced, and able to

effectively conduct the

litigation. Rogers v. Baxter Int’l, Inc., No. 04 C 6476, 2006 WL

794734, at *5 (N.D. Ill. March 22, 2006) (citing Amchem Prods.,

10

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 11 of 26
Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997)). Defendants do not contest that Plaintiff and the class are represented by experienced counsel, nor do they dispute that Plaintiff will vigorously pursue the class’ interests as well as his own.
Rule 23(b)(2) To satisfy the requirement of Rule 23(b)(2), the party who opposes the class must have “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). As stated in a leading treatise:
Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria. A. Conte & H. Newberg, 8 Newberg on Class Actions, § 25.20 (4th ed. 2002). In this case, Defendants have acted or refused to act on grounds generally applicable to the class; therefore, the requirements of Rule 23(b)(2) are met. In sum, Plaintiff has satisfied the requisite standards for class certification. Accordingly, a class consisting of “any and all persons currently confined, or who will in the future be confined, in the Grant County Jail,” is certified as to the Constitutional claims. As discussed further below, though,
11

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 12 of 26
Plaintiff’s state law claims are dismissed.
Motion to Dismiss Defendants argue that Plaintiff’s state law claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). For the purpose of analyzing Defendants' Rule 12(b)(1) claim, the following standards apply. Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the "power to decide" and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). When jurisdictional allegations are questioned, the plaintiff has the burden of proving that the jurisdiction requirements have been met. Kontos v. United States Dep't of Labor , 826 F.2d 573, 576 (7th Cir. 1987). In reviewing a Rule 12(b)(1) motion to dismiss, the Court may look beyond the complaint and review any extraneous evidence submitted by the parties to determine whether subject matter jurisdiction exists. United Transp. Union v. Gateway Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). To the extent Defendants' claims are under Rule 12(b)(6), the Court will apply the following guidelines. The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, not to decide the merits. Triad Assocs., Inc. v. Chicago Hous. Auth.,
12

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 13 of 26

892 F.2d 583, 586 (7th Cir. 1989). In determining the propriety of

dismissal under Federal Rule of Civil Procedure 12(b)(6), the court

must accept all facts alleged in the complaint as true and draw all

reasonable inferences in the light most favorable to the plaintiff.

Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001). A court may

dismiss a complaint only if it appears beyond doubt the plaintiff

can prove no set of facts that would entitle her to relief. Conley

v. Gibson, 355 U.S. 41, 45-46 (1957). Further, a court must

"construe pleadings liberally, and mere vagueness or lack of detail

does not constitute sufficient grounds for a motion to dismiss."

Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). A

complaint need not plead law or be tied to one legal theory.

LaPorte County Republican Cent. Comm. v. Board of Comm'rs of the

County of LaPorte , 43 F.3d 1126, 1129 (7th Cir. 1994) (citing

Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.

1992)). A complaint may not be dismissed just because it omits

factual allegations, but it may be dismissed when the plaintiff

makes clear that she does not plan to prove an essential element of

her case. Id.

To the extent Defendants’ claims are under Rule 12(c),

a

motion for judgment on the pleadings under Rule 12(c) “is reviewed

under the same standard as a motion to dismiss under 12(b): the

motion is not granted unless it appears beyond doubt that the

plaintiff can prove no facts sufficient to support his claim for

13

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 14 of 26
relief, and the facts in the complaint are viewed in the light most favorable to the non-moving party.” Flenner v. Sheahan, 107 F.3d 459, 461 (7th Cir. 1997); see also Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989). In ruling on a motion for judgment on the pleadings, the Court must “accept as true all well-pleaded allegations” and view them in the light most favorable to the nonmoving party, as well as accept as true all reasonable inferences to be drawn from the allegations. Forseth v. Village of Sussex, 199 F.3d 363, 364 (7th Cir. 2000); see also Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995). A court may rule on a judgment on the pleadings under Rule 12(c) based upon a review of the pleadings alone, which include the complaint, the answer, and any written instruments attached as exhibits. Id. at 452-53.
The complaint alleges that this Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. section 1367. These state claims encompass the following allegations in the complaint:
- Defendant Sheriff did not “take care of the county jail and the prisoners there” as required by Ind. Code § 36-2-13-5(a)(7). (Compl. ¶¶ 14, 42, 47.)
- Defendant County Commissioners did not “establish and maintain a . . . county jail” in compliance with Ind. Code § 36-2-2-24. (Compl. ¶¶ 15, 41, 46.)
- The overcrowding and other conditions at the Grant County Jail violate the Indiana County Jail Standards (“Indiana Jail Standards”) because: A. There is not one bed for each prisoner as required by 210 Ind. 14

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 15 of 26
Admin. Code 3-1-7(g). B. The jail is not maintained in a safe
and sanitary condition as required by 210 Ind. Admin. Code 3-1-9. C. Inmates are denied the reasonable opportunity for physical exercise and recreation as required by 210 Ind. Admin. Code 3-1-15(e). (Compl. ¶ 48.) Defendants attack these aforementioned claims under Federal Rule of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). This Court begins its analysis under Rule 12(b)(1), following the similar line of prison discipline cases, Riner v. Raines, 409 N.E.2d 575 (1980), Hasty v. Broglin , 531 N.E.2d 200 (Ind. 1988), and Zimmerman v. State, 750 N.E.2d 337 (Ind. 2001), which have been found by the Supreme Court of Indiana to: make clear, however, the threshold inquiry in these prison discipline cases is whether the trial court has jurisdiction over the subject matter. If subject matter jurisdiction is lacking, a complaint is subject to dismissal under Trial Rule 12(B)(1). Blanck v. Ind. Dep’t Of Corr., 829 N.E.2d 505, 508 (Ind. 2005). Defendants argue that there is no private cause of action for violation of these Indiana statutes and Indiana Jail Standards, and that the Indiana legislature did not intend for prisoners to be able to seek injunctive or declaratory relief for violation of the same. In response, Plaintiff argues that the Court has supplemental jurisdiction over the state law claims under 28 U.S.C. section 1367. The parties do not dispute that the traditional test
15

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 16 of 26

used in Indiana to determine if a statute can be enforced by a

litigant is clear: “[a] private cause of action generally will be

inferred where a statute imposes a duty for a particular

individual’s benefit but will not be where the Legislature imposes

a duty for the public’s benefit.” Blanck, 829 N.E.2d at 509.

However, even if a statute creates a duty towards an individual,

the Supreme Court of Indiana has found that a private right of

action may nevertheless be unavailable if the Legislature did not

intend a private cause of action to be created.

Id. at 510

(affirming dismissal of complaint brought against the Department of

Corrections alleging arbitrary prison disciplinary procedures in

violation of Indiana statutes, stating that “the question here is

ultimately one of legislative intent.”).

Plaintiffs contend that the Indiana courts have recognized

that Indiana Code section 36-2-13-5(a)(7) establishes an

enforceable obligation or duty on the Sheriff, and therefore

provides a cause of action on behalf of prisoners and against the

Sheriff. In support of this theory, Plaintiff relies mainly upon

Johnson v. Bender, 369 N.E.2d 936, 939 (Ind. Ct. App. 1977), Trout

v. Buie, 653 N.E.2d 1002, 1008 (Ind. Ct. App. 1995), andRoberts v.

State, 307 N.E.2d 501, 505 (Ind. Ct. App. 1974). Johnson involved

a wrongful death action against the sheriff when an inmate died,

alleging that the inmate’s death was proximately caused by the

sheriff’s negligence in failing to provide proper medical care.

16

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 17 of 26
Johnson, 369 N.E.2d at 937-39. The Court reasoned that under Indiana Code 11-5-1-3, the sheriff “who is charged with the care and custody of a prisoner, has a duty to take reasonable precautions under the circumstances to preserve the life, health and safety of the prisoner.” Id. at 6939. In Trout, an inmate brought a section 1983 action against the sheriff in connection with an attack upon him by another prisoner and subsequent medical care provided to him. Trout, 653 N.E.2d at 1004-05. In addressing the claim for negligence, the Court found the sheriff had a statutory duty to take care of the jail and the prisoners under Indiana Code § 36-2-13-5(a)(7), and a duty to exercise reasonable care to preserve t he prisoner’s health and safety. Id. at 1008. Roberts was an action for injuries sustained by an inmate when prison guards fired into a group of protestors. In that case, the Court noted that:
there exists adequate authority in this state to support the proposition that a public official, charged with the custody and care of a prisoner, owes a private duty to the prisoner to take reasonable precautions under the circumstances to preserve his life, health, and safety - a duty which is in addition to the duty of safekeeping owed to the public generally. Roberts, 307 N.E.2d at 505.1 In sharp contrast to this case which only seeks the remedy of
1Although the term “private duty” is used in Roberts, it is not in the context of analyzing whether the plaintiff had a private right of action under the applicable state regulation, but rather in the context of sovereign immunity.
17

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 18 of 26
injunctive and declaratory relief, all three of the aforementioned
cases (Johnson, Trout, and Roberts), involve plaintiffs suing for
damages under a negligence theory, and the Indiana statutes were
considered in determining whether the sheriff owed the inmates a
duty of care under the negligence standard. None of the cases
cited by Plaintiff involve the recovery of injunctive or
declaratory relief based upon the alleged violation of the Indiana
Jail Standards or state statutes. Indeed, this Court was not able
to locate any such case.
Plaintiff also argues that Indiana Code section 36-2-2-24
creates rights Plaintiff can enforce against the Grant County
Commissioners. In support of this argument, Plaintiff cites
Weatherholt v. Spencer County, 639 N.E.2d 354 (Ind. Ct. App. 1994),
in which a prisoner with a back condition claimed the county was
liable after he was denied a lower bunk and injured himself while
climbing to an upper bunk:
We hold that when an inmate in a county jail is injured as a result of the manner in which the jail is administered and not by any defect in the jail facility, the county does not owe him a duty of care. Indiana Code § 36-2-2-24 does not impose a duty upon a county to a dminister its jail. A county’s duty to maintain its jail is a duty to keep the jail open for use and in good repair. An inmate’s request for particular accommodations is not within the statutory authority nor the responsibility of a county. Rather, it is the sheriff who is charged with a statutory duty to administer the jail in a manner which preserves the safety of inmates. Once the county establishes and then reasonably maintains the jail, it is not responsible for administering the manner of an
18

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 19 of 26
inmate’s incarceration. Id. at 356 (internal citation omitted). Weatherholt seems to state that the county’s main duty is to maintain a jail, keep it open, and in good repair. Here, Plaintiff alleges that the Grant County Jail is overcrowded - but does not allege that it is closed, or in disrepair. Moreover, Weatherholt certainly does not hold that an injunction is appropriate relief for violation of Indiana Code section 36-2-2-24.
The cases cited by Defendants are much more apposite. Malone v. Becher, No. NA 01-101-C H/H, 2003 WL 22080737 (S.D. Ind. Aug. 29, 2003), is extremely similar to this case because the plaintiffs sued the county officials for damages, alleging that severe understaffing and inmate overcrowding created jail conditions that violated their constitutional rights and the plaintiffs alleged several state tort claims as well. The plaintiffs inMalone argued that violations of the Indiana Jail Standards, set forth in 210 Indiana Administrative Code section 3-1-1, entitled them to damages. Id. at *19. In turn, the defendants contended that there was no implied private cause of action under the Indiana Jail Standards. The Court reasoned as follows:
[A]s 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. The Indiana courts have stated that “when legislation expressly provides a particular remedy or remedies, courts
19

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 20 of 26
should not expand the coverage of the statute to subsume other remedies. ‘When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.’” Id. at *20 (citing Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind. Ct. App. 1991). The Malone Court went on to note that the Indiana legislature did provide a specific remedy for failures to comply with the jail standards (under Indiana Code section 11-12-4-2, if the Commissioner of the Department of Corrections provides notice that a county jail does not comply with the Indiana Jail Standards, the sheriff may file suit in a circuit court against the “board of county commissioners or county counsel for appropriate mandatory or injunctive relief.”). Id. at *20. Thus, it concluded that “[n]othing in the statute suggests that the legislature intended to give inmates or anyone else a private cause of action for damages, and the court sees no basis for implying one.” Id. This Court agrees with the analysis in Malone. Plaintiff argues that Malone errs in its conclusion that the Indiana Jail Standards impose only a general public benefit and not a duty for the particular benefit of prisoners, but Plaintiff provides the Court with no persuasive authority holding that declaratory relief may be sought by prisoners for violation of the Jail Standards. Further, the Court disagrees with Plaintiff’s contention that the statutory structure gives no remedy to the prisoners aggrieved by violation of the jail standards. Indiana Code section 11-12-4-1 specifically directs the Indiana Department
20

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 21 of 26
of Corrections (“IDOC”) to “adopt under IC 4-22-2 minimum standards for county jails” governing general physical and environmental conditions, services and programs to be offered, and procedures for the care and control of confined persons. Ind. Code § 11-12-4-1. Pursuant to this statutory directive, the IDOC promulgated the Indiana Jail Standards as administrative regulations. See 210 Ind. Admin. Code § 3-1-1 et seq. Then, Section 11-12-4-2 sets forth the specific relief that the department shall inspect each county jail at least once a year to determine whether it is complying with the standards adopted under section 1 of the chapter (the Indiana Jail Standards). Thus, the Indiana legislature has provided a specific remedy for failure to comply with the Indiana Jail Standards at issue in this case (210 Ind. Admin. Code 3-1-7(g), 3-1-9, and 3-115(e)), and this Court sees no basis to imply a private cause of action.
The reasoning espoused in Malone is consistent with the well developed law in Indiana regarding prison discipline cases. In Blanck v. Indiana Department of Corrections, the Supreme Court of Indiana dismissed a complaint for lack of subject matter jurisdiction, finding an inmate had no private right of action to challenge prison discipline imposed on him by the Department of Corrections pursuant to prison discipline statutes. Blanck, 829
21

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 22 of 26
N.E.2d at 509-511.2 The Blanck Court found that:
While each of these statutes imposes certain duties on the DOC and, we assume, confers substantive rights on inmates, none of them contains any provision suggesting that inmates have a right to enforce any such rights in court.
Blanck, 829 N.E.2d at 509. Finding the legislative intent clear
because the I ndiana Administrative Orders and Procedures Act
(“AOPA”) established the exclusive means for judicial review of an
agency disciplinary action, the Court held that the clear intent of
the Legislature was to deny inmates charged with or found guilty of
misconduct judicial review, and it was “not free to infer a private
right of action.” Id. at 510. Plaintiff tries to distinguish
Blanck by pointing to the AOPA statutory exemption establishing the
exclusive means for judicial review of an agency action. While it
is true that no such explicit exemption exists in this case, this
Court believes that the Legislative intent is still clear.
As in Blanck, the statutory provisions at issue in this case
do not explicitly provide a right of judicial review. Further, the
2At issue in Blanck were five provisions of the Indiana Code: Section 11-10-1-7 (requiring periodic review of the reasons for segregation); Section 11-11-5-4 (prohibiting the DOC from using various forms of discipline); Section 11-11-5-5 (prohibiting the DOC from imposing any discipline before affording the person charged with misconduct a hearing); Section 11-11-5-6 (requiring periodic review of the reasons for segregation of an offender charged with misconduct); and Section 11-11-5-7 (requiring periodic review of the reasons for segregation of an offender found guilty of misconduct). Blanck, 829 N.E.2d at 508-09.
22

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 23 of 26

Court finds the legislative intent clear. Because the Legislature

has already provided a specific remedy for failure to comply with

the Jail Standards under Indiana Code section 11-12-4-2, the

Legislature did not intend for inmates to have access to judicial

review. As acknowledged by Blanck, we are not free to infer a

private right of action. Blanck, 829 N.E.2d at 510.

The analysis and holding in Blanck was also applied in Kimrey

v. Donahue, 861 N.E.2d 379 (Ind. Ct. App. 2007), granting a motion

to dismiss inmates’ claims against the Indiana Department of

Correction (“IDOC”). In Kimrey, the inmates alleged that an IDOC

administrative procedure disallowing “all printed matter containing

any type of sexual conduct” violated their statutory right to

printed matter as set forth in Indiana Code section 11-11-3-6. Id.

at 380 n.1. The appellate court upheld the district court’s

dismissal of plaintiffs’ complaint for lack of subject matter

jurisdiction. In so doing, it noted that:

While an argument could be made that the Blanck

decision is limited to prison discipline matters,

we think that the Blanck Court’s analysis has

broader application to review of complaints brought

by inmates of the Department of Correction seeking

to enforce asserted statutory “rights,” such as in

the case before us. We garner from the

Blanck

decision that trial courts lack subject matter

jurisdiction over such complaints unless an

explicit private right of action is afforded by

statute or an allegation is made that

constitutional rights are being violated.

23

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 24 of 26
Id. at 382.3 As in Blanck, the Kimrey Court found there was nothing in the Indiana statute that suggested the inmates had a right to enforce the r ights in court. Further, the Court noted “the long-standing principle that the judiciary is constrained from interfering with the internal procedures and policies of the Department of Correction.” Id. at 383. Having determined that the Legislature did not intend to provide claimants with a private right of action to enforce Indiana Code section 11-11-3-6, the Court affirmed the dismissal of the complaint for lack of subject matter jurisdiction. Id.
Turning to the case at hand, there is nothing in the Indiana statutes (Ind. Code §§ 36-2-13-5(a)(7), 36-2-2-24), or Indiana Jail Standards (210 Ind. Admin. Code 3-1-7(g), 3-1-9, 3-1 -15(e)), allegedly violated by Defendants that imply a private right of action. Moreover, this Court finds that the Legislature did not intend for inmates to be able to bring such claims in court, for the Legislature has provided a specific remedy for failure to comply with the jail standards. Pursuant to Indiana Code section 11-12-4-2, the Commissioner of the Department of Correction must provide notice that a county jail does not comply with the
3 In this case, Plaintiff does not contend that the alleged violations of the state law give rise to an action under 42 U.S.C. section 1983 or equate to a federal constitutional violation. (See Pl.’s Mem. In Opp. To Defs.’ Mot. To Dismiss, p. 3.) Rather, Plaintiff argues that this Court has jurisdiction over the state law claims under the supplemental jurisdiction of 28 U.S.C. section 1367.
24

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 25 of 26
standards, and then the sheriff may file suit in the local circuit court against the commissioners for appropriate mandatory or injunctive relief. Id. This occurs six months after first written notice of a rule violation from the DOC, and only after a second DOC finding that the county is not making a good faith compliance effort. Ind. Code § 11-12-4-2(b). At that time, if the sheriff does not file suit, the Department of Correction may either move for an injunction itself, or recommend that the local prosecutor convene a grand jury. Ind. Code § 11-12-4-2(c).
Returning to the threshold inquiry of whether this Court has jurisdiction over the subject matter, this Court finds that subject matter jurisdiction is lacking over claims seeking an injunction or declaratory relief for violation of the Indiana Jail Standards and the alleged duties under the Indiana Code. Therefore, dismissal of the state claims is appropriate under Federal Rule of Civil Procedure 12(b)(1). Alternatively, because Plaintiff’s state claims that are allegedly pendent to the federal claims are foreclosed as a matter of state law, dismissal under Rule 12(b)(6) would also be appropriate.
CONCLUSION For the aforementioned reasons, Plaintiff’s Motion for Class
Certification is GRANTED. Accordingly, a class consisting of “any and all persons currently confined, or who will in the future be
25

case 1:07-cv-00010-RL-RBC document 27 filed 05/09/2007 page 26 of 26
confined, in the Grant County Jail,” is CERTIFIED. The Motion to Dismiss is GRANTED. The Clerk is ORDERED to DISMISS Plaintiff’s state law claims WITH PREJUDICE. Plaintiff’s Constitutional claims REMAIN PENDING.

DATED: May 9, 2007

/s/ RUDY LOZANO, Judge United States District Court

26

 
 case 1:07-cv-00010-JVB-RBC document 58 filed 01/04/13 page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

RICHARH TYSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GRANT COUNTY SHERIFF, et al.,

)

)

Defendants.

)

No. 1:07-CV-10 JVB

ORDER DISMISSING ACTION

The Court’s Order of July 30, 2008, approving the parties’ private settlem ent agreement

(ECF No. 45), provides that “absent an order from this Court or a subsequent written agreement by

the parties, this case will be dismissed on December 31, 2012, without further notice.” The Court

notes that there has been no written agreem ent filed by the parties. Ac cordingly, this case is

dismissed, with prejudice, consistent with the parties’ Stipulation to enter into a private settlement

agreement (DE 38).

SO ORDERED on January 4, 2013.

s/ Joseph S. Van Bokkelen Joseph S. Van Bokkelen United States District Judge Hammond Division

 
 Case: 1:07-cv-00010-JVB-RBC As of: 09/27/2013 09:36 AM EDT 1 of 5
CASREF,CLASS,TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Fort Wayne)
CIVIL DOCKET FOR CASE #: 1:07−cv−00010−JVB−RBC

Tyson v. Grant County Sheriff et al Assigned to: Judge Joseph S Van Bokkelen Referred to: Magistrate Judge Roger B Cosbey Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Richarh Tyson on his own behalf and on behalf of a class of those similarly situated

Date Filed: 01/19/2007 Date Terminated: 01/04/2013 Jury Demand: None Nature of Suit: 555 Prison Conditions Jurisdiction: Federal Question
represented by Kenneth J Falk ACLU of Indiana 1031 E Washington St Indianapolis, IN 46202 317−635−4059 Ext 104 Fax: 317−635−4105 Email: kfalk@aclu−in.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Grant County Sheriff in his official capacity
Defendant Grant County Commissioners in thier official capacities

represented by G Jayson Marksberry Stephenson Morow &Semler 8710 North Meridian St Suite 200 Indianapolis, IN 46260 317−844−3830 Fax: 317−573−4194 TERMINATED: 08/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael R Morow Stephenson Morow &Semler 3077 East 98th St Suite 240 Indianapolis, IN 46280 317−844−3830 Fax: 317−573−4194 Email: mmorow@stephlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by G Jayson Marksberry (See above for address) TERMINATED: 08/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael R Morow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant

Case: 1:07-cv-00010-JVB-RBC As of: 09/27/2013 09:36 AM EDT 2 of 5

Lloyd Brown, Jr

represented by Lloyd Brown, Jr 5146 Grant County Jail 214 E 4th Street Marion, IN 46953 PRO SE

Date Filed 01/19/2007
01/19/2007 01/22/2007 01/22/2007 01/25/2007 01/25/2007 02/08/2007 02/08/2007
02/08/2007
02/08/2007 02/09/2007
02/12/2007
03/07/2007 03/07/2007 03/08/2007 03/14/2007 03/14/2007
03/14/2007

# Docket Text
1 COMPLAINT/CLASS ACTION against all defendants (Filing fee $ 350.) Receipt #153846, filed by Richarh Tyson. (Attachments: # 1 Civil Cover Sheet)(lrm) (Entered: 01/22/2007)
2 Summons Issued as to Grant County Sheriff, Grant County Commissioners. (lrm) (Entered: 01/22/2007)
3 MOTION to Certify Class by Plaintiff Richarh Tyson.Response to be filed by 2/9/2007 (Falk, Kenneth) (Entered: 01/22/2007)
4 MEMORANDUM in Support of 3 MOTION to Certify Class filed by Richarh Tyson. (Falk, Kenneth) (Entered: 01/22/2007)
5 SUMMONS Returned Executed by Richarh Tyson. Grant County Commissioners served on 1/23/2007, answer due 2/12/2007. (Falk, Kenneth) (Entered: 01/25/2007)
6 SUMMONS Returned Executed by Richarh Tyson. Grant County Sheriff served on 1/23/2007, answer due 2/12/2007. (Falk, Kenneth) (Entered: 01/25/2007)
7 NOTICE of Appearance by Michael R Morow on behalf of Grant County Sheriff, Grant County Commissioners (Morow, Michael) (Entered: 02/08/2007)
8 NOTICE by Grant County Sheriff, Grant County Commissioners re 1 Complaint OF AGREEMENT OF INITIAL ENLARGEMENT OF TIME TO RESPOND TO COMPLAINT AND RESPOND TO MOTION FOR CLASS CERTIFICATION THROUGH MARCH 14, 2007 (Morow, Michael) (Entered: 02/08/2007)
9 NOTICE of Hearing: Rule 16 Preliminary Pretrial Conference set for 3/28/2007 10:00 AM in Fort Wayne before Magistrate Judge Roger B Cosbey. (wsy) (Entered: 02/08/2007)
10 MAGISTRATE JUDGE CONSENT FORMS sent to all parties (Standard Track). (wsy) (Entered: 02/08/2007)
11 MOTION for Extension of Time to File Response/Reply as to 3 MOTION to Certify Class (AGREED) by Defendants Grant County Sheriff, Grant County Commissioners. (Morow, Michael) (Entered: 02/09/2007)
12 ORDER granting 11 Agreed Motion for Extension of Time to File Response to Pltf's motion for class certification by Defts Grant County Sheriff, Grant County Commissioners. Response to be filed by 3/14/2007. Signed by Judge Roger B Cosbey on 2/12/2007. (lns) (Entered: 02/12/2007)
13 REPORT of Rule 26(f) Planning Meeting. (Falk, Kenneth) (Entered: 03/07/2007)
15 Letter from Lloyd Brown Jr re letter sent to atty Kenneth Falk. (lns) (Entered: 03/13/2007)
14 NOTICE of Appearance by G Jayson Marksberry on behalf of Grant County Sheriff, Grant County Commissioners (Marksberry, G) (Entered: 03/08/2007)
16 ANSWER to Complaint (and Affirmative Defenses) by Grant County Sheriff, Grant County Commissioners.(Morow, Michael) (Entered: 03/14/2007)
17 MOTION to Dismiss Supplemental State Law Claims by Defendants Grant County Sheriff, Grant County Commissioners.Response to be filed by 3/29/2007 (Morow, Michael) (Entered: 03/14/2007)
18 MEMORANDUM in Support of 17 MOTION to Dismiss Supplemental State Law Claims filed by Grant County Sheriff, Grant County Commissioners. (Morow,

Case: 1:07-cv-00010-JVB-RBC As of: 09/27/2013 09:36 AM EDT 3 of 5

03/14/2007 03/21/2007 03/27/2007 03/27/2007 03/28/2007
03/28/2007 04/02/2007 04/09/2007 05/09/2007
05/18/2007 07/27/2007
08/06/2007 08/24/2007 08/24/2007 09/07/2007 10/29/2007

Michael) (Entered: 03/14/2007)
19 MEMORANDUM in Opposition to 3 MOTION to Certify Class filed by Grant County Sheriff, Grant County Commissioners. (Morow, Michael) (Entered: 03/14/2007)
20 NOTICE by Richarh Tyson of Service of Initial Disclosures (Falk, Kenneth) (Entered: 03/21/2007)
21 RESPONSE in Support re 3 MOTION to Certify Class filed by Richarh Tyson. (Falk, Kenneth) (Entered: 03/27/2007)
23 Petition for Temporary Injunction by Movant Lloyd Brown Jr. (lns) (Entered: 03/28/2007)
22 RULE 16 PRELIMINARY PRETRIAL CONFERENCE held on 3/28/2007 before Judge Roger B Cosbey. Pla appeared by atty K. Falk. Dft appeared by atty M. Morow. The Report of Parties Planning Meeting 13 is approved in all respects (except for the deadline for dispositive motions and the establishment of a trial date) and is hereby made an order of the Court. Following the close of discovery, and unless otherwise ordered by the Court, the assigned District Judge will establish all further deadlines and dates. Discovery deadline is 2/7/2008. (Tape #106) (wsy) (Entered: 03/28/2007)
24 ORDER DENYING 23 Motion for Temporary Injunction by Movant Lloyd Brown Jr. Signed by Judge Rudy Lozano on 3/28/2007. (lns) (Entered: 03/29/2007)
25 MEMORANDUM in Opposition to 17 MOTION to Dismiss Supplemental State Law Claims filed by Richarh Tyson. (Falk, Kenneth) (Entered: 04/02/2007)
26 REPLY to Response to Motion re 17 MOTION to Dismiss Supplemental State Law Claims filed by Grant County Sheriff, Grant County Commissioners. (Morow, Michael) (Entered: 04/09/2007)
27 OPINION AND ORDER GRANTING 3 Motion to Certify Class by Pltf Richarh Tyson. A class consisting of "any and all persons currently confined, or who will in the future be confined, in the Grant County Jail," is CERTIFIED; GRANTING 17 Motion to Dismiss Supplemental State Law Claims by Defendants Grant County Sheriff, Grant County Commissioners. Clerk ORDERED to DISMISS WITH PREJUDICE Pltf's state law claims. Pltf's Constitutional claims REMAIN PENDING. Signed by Judge Rudy Lozano on 5/9/2007. (lns) (Entered: 05/10/2007)
28 Mail Returned from Movant Lloyd Brown Jr as Undeliverable − 27 Order on Motion to Certify Class, Order on Motion to Dismiss. Envelope marked "Return to Sender, no longer an inmate at the Grant County Jail." (lns) (Entered: 05/21/2007)
29 ORDER REASSIGNING CASE. Case reassigned to Judge Joseph S Van Bokkelen for all further proceedings. Judge Rudy Lozano no longer assigned to case. This order does not change the assignment of Magistrate Judge or any previously scheduled ddls, hrgs or trial dates. Signed by Judge Robert L Miller Jr on 7/27/2007. (lns) (Entered: 07/27/2007)
30 Mail Returned from Movant Lloyd Brown Jr as Undeliverable − 29 Order Reassigning Case. (lns) (Entered: 08/07/2007)
31 MOTION to Withdraw as Attorney by Defendants Grant County Sheriff, Grant County Commissioners. (Marksberry, G) (Entered: 08/24/2007)
32 ORDER GRANTING 31 Motion to Withdraw as Attorney by Defts Grant County Sheriff, Grant County Commissioners. Attorney G Jayson Marksberry terminated. Signed by Judge Roger B Cosbey on 8/24/2007. (lns) (Entered: 08/24/2007)
33 Mail Returned from Movant Lloyd Brown Jr as Undeliverable − 32 Order on Motion to Withdraw as Attorney. Envelope marked "Return to Sender, No Longer at Inmate at the Grant County Jail." (lns) (Entered: 09/07/2007)
34 MOTION Extend Discovery Deadline by Plaintiff Richarh Tyson. (Falk, Kenneth) (Entered: 10/29/2007)

Case: 1:07-cv-00010-JVB-RBC As of: 09/27/2013 09:36 AM EDT 4 of 5

10/29/2007 01/04/2008 01/07/2008 03/20/2008 03/25/2008
05/27/2008 05/27/2008 07/01/2008 07/28/2008 07/30/2008
07/30/2008
08/11/2008 01/26/2009 02/26/2009 07/28/2009 08/31/2009

35 ORDER GRANTING 34 Motion to Extend Discovery Deadline by Plaintiff Richarh Tyson. Discovery deadline is 5/8/2008. Signed by Judge Roger B Cosbey on 10/29/2007. (lns) (Entered: 10/29/2007)
36 MOTION 3/7/08 (extend deadline to name experts and file reports) by Defendants Grant County Sheriff, Grant County Commissioners. (Morow, Michael) (Entered: 01/04/2008)
37 ORDER GRANTING 36 Motion to Extend Deadline to File Expert Reports to/incl 3/7/08 by Defts Grant County Sheriff, Grant County Commissioners. Signed by Judge Roger B Cosbey on 1/7/2008. (lns) (Entered: 01/07/2008)
38 STIPULATION of Parties to Enter into Private Settlement Agreement After Plaintiffs' Counsel Gives Notice to the Class / Motion to Approve Form and Manner of Notice by Plaintiff Richarh Tyson. (Attachments: # 1 Proposed class notice)(Falk, Kenneth) (Entered: 03/20/2008)
39 ORDER approving 38 Stipulation of Parties to Enter into Private Settlement Agreement After Plaintiffs' Counsel Gives Notice to the Class / Motion to Approve Form and Manner of Notice by Plaintiff Richarh Tyson. The form of notice attached to the Private Settlement Agreement is APPROVED. Notice shall be given to class members as outlined in this Order; Pltfs' cnsl shall file report w/Court w/in time period specified. Signed by Magistrate Judge Roger B Cosbey on 3/25/2008. (lns) (Entered: 03/25/2008)
40 REPORT by Richarh Tyson of Class Counsel Following Notice to the Class. (Attachments: # 1 Comment−R. Tyson)(Falk, Kenneth) (Entered: 05/27/2008)
41 MOTION Set Case for Fairness Hearing by Plaintiff Richarh Tyson. (Falk, Kenneth) (Entered: 05/27/2008)
42 REPORT by Richarh Tyson of Class Counsel Following Notice to the Class (Supplemental). (Attachments: # 1 Class member comment)(Falk, Kenneth) (Entered: 07/01/2008)
43 NOTICE of Hearing: regarding 41 MOTION Set Case for Fairness Hearing :( Motion Hearing set for 7/30/2008 02:00 PM (CST)in Hammond before Judge Joseph S Van Bokkelen.) (imr) (Entered: 07/28/2008)
44 Fairness Hrg Regarding Proposed Order of Settlement held on 7/30/2008 before Judge Joseph S Van Bokkelen. Pla appeared by atty Kenneth J Falk. Dft appeared by atty Michael R Morow. Plf summarizes proposed conditions of settlement. Deft is in agreement with proposal. Parties ask that this case not be dismissed until 12/31/12. Court taking proposed join settlement agreement under advisement. (Court Reporter Julie Churchill−Mickley.) (imr) Modified on 7/30/2008 (imr). (Entered: 07/30/2008)
45 ORDER APPROVING settlement of this case. Pursuant to Private Settlment Agreement, case is now listed as inactive on Court's docket and absent an Order from this Court or a subsequent written agreement by partes, this case will be dismissed on 12/31/12 w/o further ntc. Signed by Judge Joseph S Van Bokkelen on 7/30/2008. (lns) (Entered: 07/31/2008)
46 Mail Returned from Lloyd Brown as Undeliverable − 45 Order. Envelope marked "Return to Sender, No Longer an Inmate at the Grant County Jail." (lns) (Entered: 08/12/2008)
47 NOTICE by Richarh Tyson to the Court Concerning Joint Status Report (Falk, Kenneth) (Entered: 01/26/2009)
48 STATUS REPORT (Joint) by Richarh Tyson. (Falk, Kenneth) (Entered: 02/26/2009)
49 NOTICE by Richarh Tyson Concerning Joint Status Report Currently Due on July 30, 2009 (Falk, Kenneth) (Entered: 07/28/2009)
50 STATUS REPORT (JOINT) by Richarh Tyson. (Falk, Kenneth) (Entered: 08/31/2009)

Case: 1:07-cv-00010-JVB-RBC As of: 09/27/2013 09:36 AM EDT 5 of 5

01/29/2010 02/18/2010 07/27/2010 01/28/2011 08/05/2011 01/25/2012 07/30/2012 01/04/2013 01/11/2013

51 NOTICE by Richarh Tyson Concerning Joint Status Report Currently Due on February 1, 2010 (Falk, Kenneth) (Entered: 01/29/2010)
52 STATUS REPORT (JOINT) by Richarh Tyson. (Falk, Kenneth) (Entered: 02/18/2010)
53 NOTICE by Richarh Tyson Filing of Joint Status Report (Falk, Kenneth) (Entered: 07/27/2010)
54 STATUS REPORT (JOINT) by Richarh Tyson. (Falk, Kenneth) (Entered: 01/28/2011)
55 STATUS REPORT (JOINT) by Richarh Tyson. (Falk, Kenneth) (Entered: 08/05/2011)
56 STATUS REPORT (JOINT) by Richarh Tyson. (Falk, Kenneth) (Entered: 01/25/2012)
57 STATUS REPORT (JOINT) by Grant County Commissioners, Grant County Sheriff, Richarh Tyson. (Falk, Kenneth) (Entered: 07/30/2012)
58 ORDER DISMISSING Case with prejudice, consistent with 38 Stipulation. Signed by Judge Joseph S Van Bokkelen on 1/4/2013. (lns) (Entered: 01/07/2013)
59 Mail Returned from Lloyd Brown as Undeliverable − 58 Order. Envelope marked "No Longer Here; Return to Sender." (lns) (Entered: 01/15/2013)