HOUSLEY v. PLASSE (2023)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Latasha Housley sued the defendants, Vigo County Sheriff John Plasse and employees of the Vigo County Jail, alleging that they breached their duty to adequately protect her father Frederick Whitlock, an inmate at the Jail, from Covid-19 and failed to provide constitutionally adequate medical care causing his death in December 2020.

The defendants have filed a motion for summary judgment. Dkt. 19. For the reasons below, that motion is granted in part and denied in part.

I.

Standard of Review

Parties in a civil dispute may move for summary judgment, which is a way of resolving a case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any of the material facts, and the moving party is entitled to judgment as a matter of law. Id.; Pack v. Middlebury Comm. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021). A “genuine dispute” exists when a reasonable factfinder could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material facts” are those that might affect the outcome of the suit. Id.

When reviewing a motion for summary judgment, the Court views the record and draws all reasonable inferences from it in the light most favorable to the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572–73 (7th Cir. 2021). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the factfinder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court is only required to consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it is not required to “scour every inch of the record” for evidence that is potentially relevant. Grant v. Tr. of Ind. Univ., 870 F.3d 562, 573–74 (7th Cir. 2017).

“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

II.

Factual Background

Because the defendants have moved for summary judgment under Rule 56(a), the Court views and recites the evidence “in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

A. The Parties

Plaintiff Latasha Housley is the legal representative of the Estate of Frederick Whitlock. Dkt. 1 at 1. Mr. Whitlock was a pretrial detainee at the Vigo County Jail until November 19, 2020, when he was sentenced for a criminal conviction. Dkt. 19-5. He remained at the Jail until his death on December 4, 2020. Funk Affidavit, dkt. 19-3, ¶ 8.

Defendant John Plasse is the Vigo County Sheriff. Defendants Brad Suter and Torrie Switzer were correctional officers at the Jail. The plaintiff also named 50 John Doe jail employees as defendants in her complaint. Dkt. 1.

B. Precautionary Measures for COVID-19 at the Jail

Quality Correctional Care (QCC) provided medical care to Jail inmates. Dkt. 19-3, ¶ 12. Inmates could request medical treatment through a kiosk in their cellblock or by submitting a request form to Jail staff. Id. at 14.

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.¹ In response, the Vigo County Jail undertook the health precautions listed below as recommended by the Vigo County Department of Health, although Sheriff Plasse was not required to follow the Department of Health's recommendations. Wise Affidavit, dtk. 19-2 at ¶ 7 (“Many of the COVID-19 precautions implemented at the Jail were done on the recommendation of the Vigo County Health Department.”); Plasse Deposition, dkt. 25-4 at 9. The Vigo County Health Department based its recommendations to the Jail on guidelines provided by the Centers for Disease Control and the Indiana State Department of Health. Dkt. 19-2 at ¶ 8. A general outline of events follows.

C. Mr. Whitlock's Illness and Death

The plaintiff's complaint states that Mr. Whitlock had symptoms of COVID-19—fever, loss of taste, fatigue, and malaise—a month before his death. Dkt. 1 at 2. Although there is no evidence in the record that he formally requested treatment, he and other inmates repeatedly told Jail staff that they were sick and asked to be tested for COVID-19. Epple Deposition, dkt. 25-5 at 7; Cheesman Deposition, dkt. 25-9 at 25-27. The Jail charged $15 to submit a healthcare request, so inmates verbally asked Jail staff for help to avoid the fee. Id. Jail staff told them they were fine and failed to take any action in response to the requests. Id.

On December 4, 2020, Mr. Whitlock collapsed in his cell after receiving his breakfast tray. He was transported to the hospital and died a short time later. His cause of death was asphyxiation secondary to bilateral pulmonary emboli with COVID-19 as a contributing factor. Dkt. 19-6. Shortly after Mr. Whitlock's death, the Indiana Department of Health ordered that all Jail inmates be tested for COVID-19, and over 100 inmates tested positive. Dkt. 25-4 at 14–15; Ware Deposition, dkt. 25-8 at 11 (transcript page 45). After this COVID-19 outbreak, all inmates were required to wear masks. Dkt. 25-4 at 16.

III.

Discussion

The plaintiff argues that the defendants subjected Mr. Whitlock to unconstitutional conditions of confinement with respect to COVID-19 precautions, resulting in his death. The defendants argue that they are entitled to summary judgment because (1) they did not violate Mr. Whitlock's Eighth or Fourteenth Amendment rights, and regardless they are entitled to qualified immunity; and (2) the Sheriff's Department did not have a policy, custom, or practice that caused any violation of Mr. Whitlock's constitutional rights.

The plaintiff's complaint raises three claims: 1) gross negligence, presumably under Indiana law although the complaint does not specify the basis for this claim or assert supplemental jurisdiction; 2) Eighth Amendment deliberate indifference arising while Mr. Whitlock was a convicted prisoner; and 3) Fourteenth Amendment due process claims arising while Mr. Whitlock was a pretrial detainee. Dkt. 1 at 3-5.

The plaintiff named three defendants, in addition to 50 John Doe defendants. Again, the parties do not address claims against the John Doe defendants. However, the Seventh Circuit has long held that “it is pointless to include anonymous defendants in federal court; this type of placeholder does not open the door to relation back under Fed. R. Civ. P. 15, nor can it otherwise help the plaintiff.” Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted). Thus, the claims against John Doe defendants are dismissed.

The complaint does not clarify whether the named defendants are sued in their individual capacity, official capacity, or both. The Court will first consider individual capacity claims and then turn to official capacity claims.

A. Individual Liability

Conditions-of-confinement claims for pretrial detainees, which are derived from the Due Process Clause of the Fourteenth Amendment, are analyzed under an objective standard. Hardeman v. Curran, 933 F.3d 816, 821–22 (7th Cir. 2019). Under this standard, the plaintiff must show “that the conditions in [the jail] posed an objectively serious threat to his health; that the [defendant's] response was objectively unreasonable under the circumstances; and that [he] acted purposely, knowingly, or recklessly with respect to the consequences of [his] actions.” Mays v. Emanuele, 853 F. App'x 25, 27 (7th Cir. 2021) (citing Hardeman, 933 F.3d at 823, 827 and Miranda v. County of Lake, 900 F.3d 335, 353–54 (7th Cir. 2018)).

The Eighth Amendment standard applies to the plaintiff's claim after Mr. Whitlock was sentenced on November 19, 2020. Under the Eighth Amendment, jail officials must ensure that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). An official who fails to uphold these duties violates the Eighth Amendment upon exhibiting “deliberate indifference to a substantial risk of serious harm to an inmate.” Id. at 828. “A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw on that inference.” Id.

A reasonable jury could find that the COVID-19 virus created a serious risk of harm to Mr. Whitlock's health, and that the general risk of exposure was exacerbated by the close quarters that he was subjected to. See Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020) (finding that “the objective prong is easily satisfied” as to inmates’ claims under Eighth Amendment challenging conditions of confinement in federal prison with dormitory housing at the start of the pandemic).

Under the Fourteenth Amendment standard, a jail official violates an inmate's rights if he or she fails to respond to a serious threat, such as the COVID-19 virus, in an objectively reasonable way. Under the Eighth Amendment standard, to violate an inmate's rights, the official must consciously disregard the serious risk of harm. It is not enough that a reasonable person would have acted differently. Because the Eighth Amendment standard is the more difficult of the two to prove, the Court analyzes it first. If there are disputes of material fact as to the defendants’ liability under the Eighth Amendment, those disputes would also foreclose summary judgment on the plaintiff's Fourteenth Amendment claim.

The defendants argue that they were not deliberately indifferent to Mr. Whitlock's risk of contracting COVID-19 because they relied on medical professionals to determine what precautions to take and because they were not involved in implementing those precautions—such things were handled by the Jail Commander and Jail Matron. Dkt. 20 at 7-9. They further argue that they are entitled to qualified immunity. Id. at 13-16.

“Qualified immunity is a doctrine that protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019) (cleaned up). Once a defendant raises qualified immunity as a defense, the burden shifts to the plaintiff to defeat it by showing “two elements: first, that the facts show a violation of a constitutional right, and second, that the constitutional right was clearly established at the time of the alleged violation.” Id. (cleaned up). “ ‘If either inquiry is answered in the negative, the defendant official’ is protected by qualified immunity.” Koh v. Ustich, 933 F.3d 836, 844 (7th Cir. 2019) (quoting Reed v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018) (emphasis in original)).

The Court finds the second element dispositive. “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right․ Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (cleaned up). Courts cannot define “clearly established law at a high level of generality” but rather must assess “whether the violative nature of particular conduct is clearly established.” Id. (cleaned up). The doctrine of qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments[.]” Carroll v. Carman, 574 U.S. 13, 17 (2014).

It is clearly established that prison officials may not “be deliberately indifferent to the exposure of inmates to a serious, communicable disease” under the Eighth Amendment, Helling v. McKinney, 509 U.S. 25, 33 (1993). Although COVID-19 was a new virus, the duty to protect inmates from needless exposure to a serious illness “need not be litigated and then established disease by disease [.]” Estate of Clark v. Walker, 865 F.3d 544, 553 (7th Cir. 2017).

But the issue is whether the defendants were on notice that their particular conduct—failing to provide masks, testing, adequate cleaning supplies, and adequate treatment of COVID-19 symptoms—violated Mr. Whitlock's Eighth Amendment rights. The plaintiff has cited no case that suggests as much, and the Court can find none. Instead, many courts have granted qualified immunity to jail and prison administrators given the evolving nature of the virus and the related recommendations for keeping incarcerated individuals safe. See, e.g., Ball v. Plasse, Case No. 2:21-cv-00062-JMS-MJD, 2023 WL 1766000, at *4 (S.D. Ind. Feb. 3, 2023); Jones v. Burt, Case No. 1:21-cv-41, 2022 WL 4244298, *5 (W.D. Mich. July 15, 2022) (granting qualified immunity on claim related to failure to social distance because “[n]o court has found that the inability of prison officials to ensure social distancing occurs during the COVID-19 pandemic, standing by itself, and in light of other measures ․ such as ․ setting up isolation areas for known COVID-positive prisoners, violates the Eighth Amendment.”); Ross v. Russell, Case No. 7:20-cv-000774, 2022 WL 767093, *14 (W.D. Va., Mar. 14, 2022) (finding jail officials were entitled to qualified immunity because, given the ongoing and changing guidance from health officials as to a novel virus, “neither the policies or occasional lapses [in enforcing the policies] were clearly insufficient to protect prisoners”).

Qualified immunity is especially appropriate because the defendants are correctional professionals, not health professionals. The undisputed evidence is that the Sheriff relied on the Vigo County Health Department to provide the Jail with recommended COVID-19 protective measures. Dkt. 25-4 at 9; dkt. 19-2 at ¶ 7. Courts have “long recognized that correctional institutions typically engage in the division of labor between medical professionals and other security and administrative staff,” and therefore it was reasonable for the defendants to defer to the health department for guidance on handling COVID-19 within the jail. McGee v. Parsano, 55 F.4th 563, 569, 573 (7th Cir. 2022) (cleaned up) (upholding grant of qualified immunity for jail officials in medical care context because Seventh Circuit precedent “dictates that corrections officers are not constitutionally obligated to override the judgment of medical professionals unless they have reason to know that an inmate is receiving inadequate treatment”); Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir. 2019) (holding that plaintiff could not prove the subjective element of deliberate indifference claim “because the defendants are all non-medical officials who reasonably relied on the judgment of medical professionals”).

Accordingly, summary judgment is granted as to claims against the defendants in their individual capacities.

B. Practice-or-Policy Claim

The Court now turns to whether Sheriff Plasse is entitled to summary judgment in his official capacity.² See Luck v. Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999) (“Indiana Code § 36-2-13-5(a) provides without further qualification that it is the sheriff's duty to take care of the jail and its prisoners. Thus, ․ the sheriff serves as the county's official decision-maker in matters involving the county jail.”).

In order to maintain a § 1983 claim against Sheriff Plasse in his official capacity, the plaintiff must show that Mr. Whitlock's constitutional rights were violated by a policy or custom of the Sheriff's Department. Monell v. Dep't. of Social Services, 436 U.S. 658, 694–95 (1978). “The critical question under Monell is whether a policy or custom of a municipal entity caused a constitutional deprivation.” Gonzalez v. McHenry Co., Ill., 40 F.4th 824, 829 (7th Cir. 2022).

For Monell liability to attach, the plaintiff must first show that Mr. Whitlock was deprived of a federal right, and then that the deprivation was caused by a Sheriff's Department custom or policy or failure to implement a needed policy. Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021). Further, to the extent that the plaintiff is challenging a facially lawful policy (express or implied), the plaintiff must provide evidence of a “pattern of similar constitutional violations resulting from the policy.” Helbachs Café LLC v. City of Madison, 46 F.4th 525, 530 (7th Cir. 2022) (cleaned up). If challenging an unconstitutional municipal practice or custom, the plaintiff must show “evidence that the identified practice or custom caused multiple injuries.” Id. (cleaned up).

Although Fourteenth Amendment claims against individuals are analyzed under an objective standard, Hardeman, 933 at 821–22, Monell liability only attaches when the plaintiff shows that the municipality acted with deliberate indifference, J.K.J. v. Polk County, 960 F.3d 367, 377 (7th Cir. 2020). As the Supreme Court has explained,

[Q]uite apart from the state of mind required to establish the underlying constitutional violation ․ a plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences.

Board of County Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 407 (1997); see also Miranda v. County of Lake, 900 F.3d 335, 345, 352 (7th Cir. 2018) (applying deliberate indifference standard to pretrial detainee's Monell claim despite disavowing that standard for pretrial detainee's claims against individual defendants).

Thus, the Court analyzes the plaintiff's claims under the deliberate indifference standard. Under that standard, the plaintiff must show that Mr. Whitlock was at serious risk of exposure to harm, and the Sheriff “kn[ew] of a substantial risk of harm to an inmate and either act[ed] or fail[ed] to act in disregard of that risk.” Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020) (internal quotations and citations omitted). The fact that Mr. Whitlock contracted COVID-19 is not enough to show deliberate indifference because the sheriff can avoid liability if he “responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer v. Brennan, 511 U.S. 825, 844 (1994).

Again, a reasonable jury could find that COVID-19 created a serious risk of harm to Mr. Whitlock's health, satisfying the first prong of the deliberate indifference analysis. Wilson, 961 F.3d at 840. Thus, the Court must determine whether there is a dispute of fact as to whether the Sheriff's policies related to COVID-19—or lack thereof—evinced deliberate indifference. The Court concludes there is.

First, a jury could find that Sheriff Plasse was deliberately indifferent by failing to create a comprehensive written policy to combat the spread of COVID-19 in the jail. In Glisson v. Indiana Department of Corrections, 849 F.3d 372, 382 (7th Cir. 2017), the Seventh Circuit concluded that a medical services provider could be liable for failing to establish a protocol for the coordinated care of chronic illnesses because the need for such a protocol was “obvious,” so a jury could find that the lack of protocol caused the plaintiff's death. While the Court recognizes that the evolving nature of the COVID-19 virus and guidance provided by the CDC would warrant a flexible approach, a jury could find that the lack of a written policy resulted in a haphazard response in the jail.

To the extent that the Sheriff's Department had a policy to combat COVID-19, a jury could conclude that the few steps taken were so ineffectual as to evince deliberate indifference. There is no evidence that efforts were made to socially distance inmates or to procure tests before December 2020.³ There is no evidence that inmates were provided educational materials about COVID-19. Sheriff Plasse does not explain why jail staff members were not required to wear masks until August 2020. A jury could find that the few policies enacted were insufficient in light of the serious risks posed by COVID-19 and other reasonable measures that could have been taken. See Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (upholding grant of preliminary injunction where officials at immigration detention center failed to provide detainees masks or compel guards to wear masks, failed to enact social distancing measures, and failed to provide sufficient soap or hand sanitizer).

Many courts have granted summary judgment in favor of municipalities for their responses to the COVID-19 pandemic, but the jail officials in those cases enacted far more comprehensive policies than those presented here. See e.g. Harb v. Penzone, Case No. CV-21-01032-PHX-MTL, 2022 WL 17177675, *12 (D. Ariz. Nov. 23, 2022) (Maricopa County Sheriff not deliberately indifferent where in March 2020 jail enacted policies that restricted visitors, reduced inmate populations, distributed masks and cleaning supplies to inmates, required staff and inmates to wear masks, instituted screening protocols for everyone entering the jail, etc.); Brogan v. BRRJA, Case No. 7:21-cv-00180, 2022 WL 875040, *5 (W.D. Va. Mar. 23, 2022) (similar provisions including masks, temperature checks, and testing); Carpenter v. Thurston County, Case No. 3:21-cv-05859-BJR-JRC, 2022 WL 3239754, *5 (W.D. Wash. June 13, 2022) (similar provisions including screenings, quarantines, face mask directives, social distancing, and enhanced cleaning). In this case, however, there are material disputes of fact as to whether the Sheriff was deliberately indifferent to the serious risks of harm given the minimal safety measures he undertook, or at least that are of record.

Because there are material disputes of fact as to whether the Vigo County Sheriff's Department COVID-19 policies caused Mr. Whitlock to suffer a constitutional injury, summary judgment must be denied as to the official capacity claim against Sheriff Plasse.

IV.

Conclusion

For the foregoing reasons, the defendants’ motion for summary judgment, dkt. [19], is granted as to the plaintiff's claims against defendants Suter and Switzer and the individual capacity claims against Sheriff Plasse. The motion is denied as to the plaintiff's official capacity claims against Sheriff Plasse. In addition, the Court dismissed all claims against John Doe defendants.

The parties’ briefing did not address the gross negligence claim raised in the plaintiff's complaint. The plaintiff shall have through September 15, 2023, in which to notify the Court whether she intends to proceed with that claim.

The Magistrate Judge is requested to set this matter for a status conference at her earliest convenience to discuss what further development is necessary for trial and if the case is amenable to settlement.

IT IS SO ORDERED.

FOOTNOTES

1.   See Centers for Disease Control and Prevention, “CDC Museum COVID-19 Timeline,” https://www.cdc.gov/museum/timeline/covid19.html (last visited August 10, 2023).

2.   Because official capacity claims against defendants Suter and Switzer would be duplicative of the official capacity claim against Sheriff Plasse, defendants Suter and Switzer are entitled to summary judgment.

3.   The Court recognizes that deference must be afforded to jail administrators in matters implicating safety and security concerns, including decisions related to inmate housing. Mays v. Dart, 974 F.3d 810, 820, 824 (7th Cir. 2020) (vacating portion of preliminary injunction that precluded Cook County Sheriff from double-celling inmates during COVID-19 because housing decisions implicated security concerns while upholding provisions regarding masks, sanitation, and testing). Here, though, questions of fact remain regarding whether the Sheriff attempted to procure tests or otherwise took sufficient COVID-19 precautions before Mr. Whitlock died.

JAMES R. SWEENEY II, JUDGE