Shannon v. Porter County Sheriff's Dept. et al
OPINION AND ORDER Defendants Motion for Summary Judgment DE# 23 is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to: (1) the 42 U.S.C. § 1983 claims against David E. Lain and the Porter County Sheriffs Department; (2) the civi l conspiracy and state constitutional claims; and (3)the intentional infliction of emotional distress claim. These claims are DISMISSED, and defendant David E. Lain is DISMISSED from this case. The motion is DENIED as to: (1) the 42 U.S.C. § 1983 claim against John Widup in his individual capacity; (2) the issue of qualified immunity for John Widup; and (3) the negligence claim against the Porter County Sheriffs Department. Signed by Judge Rudy Lozano on 9/11/17.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
) NO. 2:14–CV-188
PORTER COUNTY SHERIFF’S DEPT., a
political subdivision of the
State of Indiana; DAVID LAIN,
Individually and in his capacity
as Sheriff of the Porter County
Sheriff’s Dept.; JOHN WIDUP,
Individually and as Warden of
the Porter County Jail,
OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion for
Summary Judgment, filed on September 6, 2016, by Defendants Porter
County Sheriff’s Department, David E. Lain and John Widup in their
individual and official capacities (DE #23).
For the reasons set
forth below, Defendants’ Motion for Summary Judgment (DE #23) is
GRANTED IN PART and DENIED IN PART.
The motion is GRANTED as to:
(1) the 42 U.S.C. § 1983 claims against David E. Lain and the
Porter County Sheriff’s Department; (2) the civil conspiracy and
state constitutional claims; and (3) the intentional infliction of
These claims are DISMISSED, and defendant David E.
Lain is DISMISSED from this case.
The motion is DENIED as to: (1)
the 42 U.S.C. § 1983 claim against John Widup in his individual
capacity; (2) the issue of qualified immunity for John Widup; and
(3) the negligence claim against the Porter County Sheriff’s
On May 17, 2012, Plaintiff John Shannon (“Shannon”) was
attacked by an inmate while he was a pretrial detainee in the
Porter County Jail (“Jail”).
Shannon filed this action against
Department”), David Lain (“Lain”) in his individual capacity and
in his capacity as Sheriff of the Sheriff’s Department, and John
Widup (“Widup”) in his individual capacity and in his capacity as
Warden of the Jail (together, “Defendants”), alleging violations
of 42 U.S.C. § 1983 and the Indiana Constitution, and state tort
The case was removed to federal court,
and after the close of discovery, Defendants filed the instant
motion for summary judgment on September 6, 2016.
Shannon filed his response to Defendants’ motion on November 9,
November 22, 2016.
Defendants filed their reply to the motion on
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties
makes summary judgment inappropriate; “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
determining whether summary judgment is appropriate, the court
nonmoving party and draw all reasonable inferences in that party’s
Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor toward the nonmoving party does not extend to
drawing inferences that are supported by only speculation or
Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir.
2013) (citation omitted).
While the movant bears the initial burden of production to
inform the district court why a trial is not necessary, these
requirements “are not onerous” where the nonmoving party “bears
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). A party
may move for summary judgment based on either “affirmative evidence
that negates an essential element of the nonmoving party’s claim”
insufficient to establish an essential element of the nonmoving
Id. at 1169 (citation and internal quotations
A party opposing a properly supported summary judgment
motion may not rely on allegations or denials in his own pleading,
but rather, must “marshal and present the court with the evidence
[he] contends will prove [his] case.”
Goodman v. Nat'l Sec.
Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
If the nonmoving
party fails to establish the existence of an essential element on
which he bears the burden of proof at trial, summary judgment is
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
On April 17, 2012, Shannon was taken into custody at the Jail
on a failure to appear warrant on multiple misdemeanors.
A day or
two thereafter, Shannon met with Porter County Police Department
Detective Reynolds and a Porter County prosecutor to discuss an
incident Shannon had witnessed involving a man named Mark Hurst
During that meeting, Shannon agreed to testify at
Hurst’s criminal trial.
Shannon requested no deal in return for
his testimony, but asked to be protected while being held at the
They told Shannon that he would receive protective custody
and be kept separate from Hurst, who was also being held at the
According to Shannon, an unidentified jail employee stated
that he was in contact with Warden Widup and advised Shannon that
he would be placed in protective custody.
Shannon believed that
protective custody meant that he would not be housed with the
general population of inmates.
classification states that jail personnel “shall flag inmates who
. . . have a special need.”
(DE #29-11 at 3.)
“Some inmates may
have conditions or situations that call for them to have increased
supervision, segregation, or special living conditions.
special needs include . . . [p]rotective custody, for reasons such
as . . . [t]estifying as a witness.”
(Id. at 4.)
standard operating procedure on segregation housing states that
jail personnel “shall segregate an inmate if the inmate . . .
[n]eeds protective custody.”
(DE #29-10 at 1.)
Widup and other
jail officers testified that it is well understood within the jail
community that inmates who testify against other inmates are at a
unique or greater risk of harm from other inmates, and recognized
the special need for protective custody for inmates who testify as
(See DE #29-2 at 19 (“unique risk”); DE #29-6 at 4
(“greater risk”); DE #29-5 at 3-4 (acknowledging that a testifying
inmate’s life and health are in jeopardy, and that he faces a risk
from the general population as well as from the inmate against
whom he testifies).)
The Jail had three areas in which inmates were segregated
including child molesters, who were segregated for their own
protection; (2) medical segregation, for inmates needing medical
violated Jail rules.
The Jail did not have “protective custody”
segregation for testifying inmates because the Jail was “not set
up” for it.
(DE #29-2 at 11.)
The Jail’s practice was to keep a
testified by placing a “keep separate” designation in its data
A “keep separate” designation was the “most basic
form” of protective custody at the Jail.
(DE #29-3 at 12.)
recalled that three inmates had been relocated to other county
jails because they were testifying against other inmates who were
housed in the Jail.
On April 19, 2012, Detective Reynolds called the Jail’s
classification officer David Cavanaugh (“Cavanaugh”) and requested
that a keep separate order be entered for Shannon and Hurst.
Cavanaugh entered the keep separate order, and Shannon and Hurst
were kept separate while Shannon was in custody.
Lain, Widup and
Assistant Warden Ron Gaydos (“Gaydos”) testified that they did not
receive any notice from the prosecutor’s office that Shannon needed
requesting special protection for Shannon.
On April 20, 2012, Shannon met with Cavanaugh to determine
While the form did not indicate that Shannon
was testifying against Hurst, it noted that Shannon was to be kept
Shannon was deposed prior to testifying at Hurst’s criminal
Sometime between Shannon’s deposition and trial testimony,
Shannon communicated with Widup while in the Jail’s booking area.
Their accounts of this communication differ considerably.
testified that he “told [Widup] my concern” while in the Jail’s
booking area, and Widup “said he’s aware of the situation and would
make sure that I am moved today. . . .
Young over. . . .
[T]hen he called Lieutenant
[Young was] told by the warden [Widup] to make
sure that I am moved, and which [sic] I did not get moved.”
#29-7 at 15.)
In contrast, Widup testified that Shannon merely
“yelled at me about something” while in the booking area.
#29-2 at 11.)
On April 25, 2012, Shannon testified at Hurst’s criminal
Shannon told Detective Reynolds, the prosecutor, and the
officer who transported him to the courthouse that he was still
being housed in general population.
he would handle it.
The officer told Shannon that
Shannon also spoke to jail Captain Ronald
Taylor (“Taylor”) about not being in protective custody.
told him that protective custody was for child molesters, and that
Shannon would be moved that day.
Shannon was never placed in
After Hurst’s trial, Shannon was in line for food with other
inmates when a jail officer congratulated him on testifying against
Thereafter, Shannon was assaulted by some inmates, which
resulted in red marks on his face.
Shannon summoned an officer
using the emergency button in his cell, and told him that another
officer had disclosed to inmates that Shannon was a snitch, that
he feared for his safety, and that he was supposed to be in
An officer’s incident report dated May 2,
2012, states that an officer received inmate request forms about
incident report, the officer discussed the requests with Shannon,
who said that he had been threatened by an unidentified inmate,
that he did not fear for his safety, and that “the reason alot
[sic] of people do not like him is because he is a witness against
(DE #29-15 at 2.)
The officer initially left
Shannon in his cell, but transferred Shannon to disciplinary
segregation later that day because of the threats written in the
inmate request forms.
Shannon was housed in disciplinary
segregation until May 6, 2012, when he was transferred to general
(DE #29-3 at 5.)
inmate punched him and called him a snitch.
Shannon does not
recall any injury from this assault. Shannon spoke with an officer
segregation to be reclassified on May 7, 2012.
(DE #29-3 at 5.)
Shannon was transferred back to general population on or about May
(Id. at 5-6.)
On May 17, 2012, Shannon was sitting at a table eating dinner
in a common area when inmate Sergio Perez (“Perez”) struck him
repeatedly in the head with what Shannon believes was batteries
wrapped in a sock.
Shannon did not fight back.
It is undisputed
that Perez attacked Shannon because he had testified against Hurst,
and that Shannon did not know Perez before the attack.
attack lasted less than a minute, after which Shannon returned to
threatened him not to say anything about the attack.
inmates left, Shannon pushed the emergency button in his cell, but
no officer responded.
He then telephoned his mother and wife.
Within ten minutes, officers removed Shannon from his cell, telling
him that they learned of the attack from his mother and wife.
Shannon was transported to the hospital for treatment of his
injuries, which included a fractured nose and eye socket.
Shannon returned to the Jail, he was housed in medical isolation.
While in medical isolation, Shannon was not seen by a nurse or
provided with a shower or an ice pack.
Shannon pushed the
emergency button several times to request an ice pack.
maintains that officers “Tased” him, hit him, and placed him in a
“suicide chair” for 12-13 hours, causing him to urinate and
defecate on himself.
(DE #29-7 at 44.)
Thereafter, Shannon was
returned to medical isolation until he was released from custody.
Neither Shannon nor Defendants knew Perez was planning to
After learning of Perez’s attack and Shannon’s
injuries, Widup asked Captain Taylor to investigate the incident.
Widup maintains that he learned that Shannon had testified against
another inmate through Taylor’s investigation, and that no one had
contacted him about any arrangement for protective custody for
Shannon. In the past, the prosecutor or other agency had contacted
detainees at the Jail.
Widup testified that because Shannon was
testifying against another inmate, he would have qualified for
protective custody automatically, and that if Widup had been aware
that Shannon was testifying against another inmate, he would have
Widup further testified that if Shannon had been
in protective custody, he would not have been injured.
Section 1983 Claims against Lain and Widup in Their Individual
Count II of the Complaint asserts claims pursuant to 42 U.S.C.
§ 1983 against all Defendants, including Lain and Widup in their
individual and official capacities.
Defendants argue that the
Section 1983 claims against Lain and Widup in their individual
capacities must be dismissed.
Section 1983 provides a federal
cause of action any time an individual who, under color of state
law, deprives another of any right, privilege, or immunity as
provided by the Constitution and laws of the United States.1
U.S.C. § 1983.
Individual capacity suits “seek to impose personal
liability upon a government official for actions he takes under
color of state law.”
Kentucky v. Graham, 473 U.S. 159, 165, 105
involvement in the alleged constitutional deprivation.’”
Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (quoting Palmer v.
Marion County, 327 F.3d 588, 594 (7th Cir. 2003)).
direct participation is not necessary, there must at least be a
showing that the [prison official] acquiesced in some demonstrable
was a pretrial detainee at the time of his alleged
constitutional deprivation, and thus, his Section 1983 claims are
analyzed under the Due Process clause of the Fourteenth Amendment
rather than the Eighth Amendment. See Velez v. Johnson, 395 F.3d
732, 735 (7th Cir. 2005). The Seventh Circuit has found “little
practical difference between the two standards.”
way in the alleged constitutional violation.”
Palmer, 327 F.3d at
594 (citations omitted).
“[P]rison officials have a duty to protect prisoners from
violence at the hands of other prisoners.”
Farmer v. Brennan, 511
U.S. 825, 833, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994) (citations
and ellipses omitted).
“It is not, however, every injury suffered
by one prisoner at the hands of another that translates into
constitutional liability for prison officials responsible for the
Id. at 834; see Dale v. Poston, 548 F.3d 563,
569 (7th Cir. 2008) (noting that a constitutional violation does
not occur “every time an inmate gets attacked by another inmate”).
The alleged deprivation must be “sufficiently serious,” and the
prison official must have had “deliberate indifference” to inmate
health or safety.
Farmer, 511 U.S. at 834 (citations omitted).
There is no dispute that the threat of which Shannon complains
(being attacked by an inmate) is sufficiently serious to support
a constitutional claim. The parties dispute whether Lain and Widup
deliberate indifference requires more than a showing of negligence
or even gross negligence; the official must have acted with the
equivalent of criminal recklessness.
See Guzman v. Sheahan, 495
F.3d 852, 857 (7th Cir. 2007) (proving deliberate indifference to
an inmate’s safety requires conduct “equivalent [to] criminal
recklessness”); Borello v. Allison, 446 F.3d 742, 749 (7th Cir.
deliberate indifference, a plaintiff must show that the official
had “actual, and not merely constructive, knowledge of the risk”
of serious injury to plaintiff; “specifically, [the 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 that inference.”
Gevas v. McLaughlin, 798 F.3d 475, 480 (7th
substantial risk is a question of fact.
Farmer, 511 U.S. at 842.
Defendants argue that the Section 1983 claims against Lain
and Widup in their individual capacities should be dismissed
because neither Lain nor Widup were personally involved in the
alleged constitutional deprivation.
Defendants maintain that
prior to Perez’s attack, Lain and Widup were unaware of any issues
between Shannon and Perez, or that Perez posed a threat to Shannon.
However, a “prison official cannot escape liability by showing
that he did not know that a plaintiff was especially likely to be
assaulted by the specific prisoner who eventually committed the
Dale, 548 F.3d at 569 (citation and internal quotation
Thus, Lain’s and Widup’s lack of awareness that
Perez posed a threat to Shannon is insufficient to avoid liability.
Defendants insist that Lain and Widup had no knowledge of any
threat to Shannon’s safety, and only learned that Shannon had
testified against another inmate after he was attacked by Perez.
Shannon responds that Lain and Widup were personally involved
because his mother “spoke directly with Sheriff Lain and Warden
Widup about the Shannon situation.”
(DE #29 at 18.)
Shannon cites his own interrogatory answer, which was not based
admissible evidence in assessing a motion for summary judgment.”
Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (citations
“[A] party cannot use his own interrogatory answer,
which is almost certainly hearsay when offered by that party
himself to prove the truth of its contents, to support or oppose
Luster v. Ill. Dep’t of Corr., 652 F.3d 726,
731 n.2 (7th Cir. 2011).
Lain’s personal involvement.
Shannon offers no other evidence of
Because Shannon does not proffer any
admissible evidence raising a genuine issue of material fact as to
whether Lain was personally involved in the alleged constitutional
deprivation, the Section 1983 claim against Lain in his individual
capacity where plaintiff failed to make any showing that sheriff
was aware of the risk faced by plaintiff).
Shannon maintains that Widup was personally involved in the
alleged constitutional deprivation because he told Widup that he
needed protective custody before he was attacked by Perez. Shannon
testified in his deposition that he spoke to Widup about his
concern in the Jail’s booking area before he testified at Hurst’s
According to Shannon, Widup “said he’s aware of
the situation and would make sure that I am moved today,” and told
Lieutenant Young “to make sure” that Shannon was moved.
7 at 15.)
Defendants contend that Shannon’s representation of his
communication with Widup is an exaggeration of the facts.
recollection is that Shannon once “yelled at me about something”
in the booking area.
(DE #29-2 at 11.)
Defendants focus on
Shannon’s testimony that this communication was “in passing” to
argue that this communication is insufficient evidence of Widup’s
personal involvement (DE #29-7 at 15), and insist that Widup did
not know that Shannon testified against another inmate until after
However, the Court cannot discount Shannon’s
testimony merely because the communication took place in passing.
See Gevas, 798 F.3d at 482 (reversing judgment as a matter of law
where prisoner’s “quite brief” interaction with acting warden of
operations in the prison kitchen was sufficient to communicate the
essential nature of the threat to the prisoner and to support the
inference that the warden had actual knowledge of the threat).
To determine whether an official had actual knowledge of the
threat to an inmate’s safety, courts consider the information the
inmate conveyed to the official.
Conveying to officials “only a
generalized, vague, or stale concern about one’s safety typically
will not support an inference that a prison official had actual
Instead, “a complaint that identifies a
identifies the prospective assailant typically will support an
inference that the official to whom the complaint was communicated
had actual knowledge of the risk.”
Id. at 481 (citation omitted).
Shannon does not specify what information he relayed to Widup about
his concern, but testified that Widup said that he was aware of
Shannon’s situation, promised to move him, and ordered Lieutenant
Young to make sure Shannon was moved. Widup testified that inmates
who testify against other inmates are at a unique risk of harm
from other inmates, and that as a testifying witness, Shannon would
factfinder may believe that Shannon communicated his concern to
Widup and Widup instructed an officer to make sure that Shannon
was moved. If so, the factfinder reasonably could infer that Widup
had notice of facts from which he could infer that Shannon faced
a serious risk of substantial harm, and that Widup actually drew
this inference, and was thus subjectively aware of the danger
See Hatry v. County of Suffolk, 755 F. Supp. 2d
422, 438 (E.D.N.Y. 2010) (denying summary judgment where a jury
could find that the officer was aware of a substantial risk to
inmate’s safety given evidence that he knew that the inmate was a
Considering the evidence in the light most favorable
to Shannon, a genuine issue of fact exists regarding whether Widup
had actual knowledge of the threat to Shannon’s safety.
evidence of Widup’s deliberate indifference to Shannon’s safety.
“Once prison officials know about a serious risk of harm, they
have an obligation ‘to take reasonable measures to abate it.’”
Dale, 548 F.3d at 569 (citing Borello, 446 F.3d at 747).
prison officials are aware of a serious threat and ‘do nothing,
that is deliberate indifference.’”
Gidarisingh v. Pollard, 571 F.
App’x 467, 471 (7th Cir. 2014) (quoting Billman v. Ind. Dep't of
Corr., 56 F.3d 785, 788 (7th Cir. 1995)).
“Prison officials who
had actual awareness of a substantial risk to the health or safety
of an inmate incur no liability if they responded reasonably to
the risk, even if the harm ultimately was not averted, because in
Guzman, 495 F.3d at 857 (citation and internal
quotation marks omitted).
Shannon argues that Defendants knew that he was in danger,
but did nothing about it.
He points to his communications with
the unidentified jail officers who were present when he spoke with
the county prosecutor, as well as officers who transported him to
and from the courthouse and served him the subpoena for his trial
But “the fact that an inmate sought and was denied
protective custody is not dispositive of the fact that prison
officials were therefore deliberately indifferent to his safety.”
Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997).
communications before Perez attacked Shannon.
Nor does Shannon
proffer evidence indicating that, before Perez’s attack, Windup
knew that a jail officer had disclosed to other inmates that
Shannon had testified against Hurst, or that other inmates had
assaulted Shannon for being a snitch. “[U]nder § 1983, a plaintiff
may not rely on the doctrine of respondeat superior to hold
Doyle v. Camelot Care Ctrs., 305 F.3d 603, 614
(7th Cir. 2002) (citation omitted).
Thus, Widup cannot be held
liable for the misconduct of other jail officers.
Shannon’s only admissible evidence relating to Widup is his
testimony regarding their communication in the Jail’s booking
As noted above, Widup’s recollection of this communication
Defendants contend that Shannon did not
present his complaints directly to Widup, and that Widup was never
told that Shannon required any type of special accommodation.
Court must consider the evidence in the light most favorable to
Shannon as the nonmoving party.
Thus, the Court must assume that
the communication took place according to Shannon’s testimony,
i.e., that Shannon told Widup his concerns, and that while Widup
told Shannon that he would be moved out of general population that
day, Shannon was not moved.2
See Gidarisingh, 571 F. App'x at 471
(“[B]ecause the record suggests that [defendant] did nothing, a
reasonable jury could conclude that he deliberately disregarded a
serious risk to [plaintiff’s] safety”).
Because genuine issues of
material fact exist as to whether Widup acted with deliberate
indifference to Shannon’s safety, the Court denies Defendants’
motion for summary judgment on the Section 1983 claim against Widup
in his individual capacity.
Court notes that while Shannon argues that Widup did nothing
to protect him, he testified that Widup instructed Lieutenant Young
to make sure he was moved. None of the parties address Widup’s
alleged instruction. If the factfinder finds Shannon’s testimony
to be credible, it may find that Widup’s instruction to Young was
a reasonable response to the threat to Shannon’s safety.
Gidarisingh, 571 F. App’x at 471 (“Had [defendant] taken some
reasonable action in response to the threat, even if it did not
ultimately prevent an attack, he might avoid liability.”).
liability for reasonable mistakes made while performing their
Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir.
2013) (citation omitted).
“Whether a government official is
entitled to qualified immunity is a legal question for resolution
by the court, not a jury.”
Purtell v. Mason, 527 F.3d 615, 621
(7th Cir. 2008) (citations omitted).
In determining whether an
official is entitled to qualified immunity, a court asks two
constitutional right, and (2) whether that constitutional right
was clearly established at the time of the alleged violation.”
Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015) (citation
“Although the privilege of qualified immunity is a
defense, the plaintiff bears the burden of defeating it.”
v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012) (citation omitted).
Defendants maintain that Lain and Widup are entitled to
presented no evidence that Lain or Widup were aware of a safety
threat to Shannon until after Perez’s attack, and thus, they could
not have been deliberately indifferent to the risk of harm to
As shown above, this is true for Lain, and therefore he
is entitled to qualified immunity.
As for Widup, the Court has
found that Shannon raises genuine issues of material fact regarding
Widup’s actual knowledge of the threat to Shannon’s safety and
deliberate indifference to his safety.
circumstances because he relied upon the Jail’s classification
They point to evidence that classification officer
separate” order be entered for Shannon and Hurst, and that the
order was followed.
However, Widup testified that because Shannon
was testifying against another inmate, he would have qualified for
protective custody automatically, and that if Widup had been aware
that Shannon was testifying against another inmate, he would have
Widup’s testimony raises a question as to whether
it was reasonable to rely on the classification process in this
It is possible that further development will show a set of
facts under which qualified immunity might apply to Widup, but for
now the Court cannot determine as a matter of law that qualified
immunity applies to the Section 1983 claim against him.
Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (“When
disputed facts, the issue cannot be resolved without a trial.”).
Defendants also argue that Shannon has not demonstrated that
the constitutional right was clearly established.
can show that a right is ‘clearly established’ by statute or
constitution in at least two ways: (1) he can point to a clearly
analogous case establishing the right to be free from the conduct
at issue; or (2) he can show that the conduct was so egregious
that no reasonable person could have believed that it would not
violate established rights.”
Beaman v. Freesmeyer, 776 F.3d 500,
508–09 (7th Cir. 2015) (citation and internal quotation marks
A prison official “cannot be said to have violated a
sufficiently definite that any reasonable official in [his] shoes
would have understood that he was violating it, meaning that
existing precedent . . . placed the statutory or constitutional
question beyond debate.”
Kingsley v. Hendrickson, 801 F.3d 828,
832 (7th Cir. 2015) (citation omitted).
“[T]he inquiry into
whether a right is clearly established ‘must be undertaken in light
of the specific context of the case, not as a broad general
Borello, 446 F.3d at 750 (quoting Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L.Ed.2d 583 (2004));
see Kingsley, 801 F.3d at 832 (courts “must define the right in
question with a sufficient degree of particularity”).
Shannon asserts that the Constitution imposes on officials a
duty to protect inmates from other inmates, and protects inmates
from the deliberate indifference of jail officials toward their
He cites Velez v. Johnson, 395 F.3d 732 (7th Cir. 2005),
in which the Seventh Circuit states, “it is plainly the right [of
an inmate] to be free from deliberate indifference to rape and
There can be no debate that this right was clearly
established at the time.”
Id. at 736 (holding that an officer’s
failure to adequately respond to a pretrial detainee’s emergency
detainee’s constitutional rights); see Haley v. Gross, 86 F.3d
630, 643 (7th Cir. 1996) (upholding a jury finding of deliberate
indifference where an inmate told the officer that his cellmate
made him fear for his safety and the officer “said he would ‘check
into [moving the inmate],’ but nothing happened”). Shannon’s right
to be free from deliberate indifference to assault was clearly
established at the time he was attacked by Perez.
Section 1983 Claim against the Sheriff’s Department
Defendants also assert that the Section 1983 claim against
the Sheriff’s Department must be dismissed because Shannon has no
evidence of any procedure, policy or practice that allegedly caused
A municipality may only be held liable for
3 Shannon’s claims against Lain and Widup in their capacities as
Sheriff and Warden, respectively, will be treated as claims against
constitutional violations caused by the municipality through its
own policy, practice, or custom.
Monell v. Dep't of Soc. Servs.
of the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978).
To recover under Monell, a plaintiff must
establish that (1) he suffered a deprivation of a federal right
(2) as a result of an express municipal policy, a widespread
policymaking authority for the municipality that (3) was the
proximate cause of his injury.
(7th Cir. 2014).4
King v. Kramer, 763 F.3d 635, 649
“The existence of a policy or custom can be
established in a number of ways: the plaintiff may point to an
constitutional injury, or demonstrate that there is a practice
that is so widespread that it rises to the level of a custom that
can fairly be attributed to the municipality.”
the Sheriff’s Department because “[a]n official capacity suit is
tantamount to a claim against the government entity itself.”
Guzman, 495 F.3d at 859 (citations omitted); see McLaughlin v.
Freeman, No. 2:08-CV-58-PRC, 2013 WL 5407041, at *8 (N.D. Ind.
Sept. 26, 2013) (holding that claims against Lake County Jail
deputy warden in his official capacity were claims against the
Lake County Sheriff's Department).
4 Shannon states in passing that he “must demonstrate that Porter
County through its final policy maker [sic] Chief Lain and Warden
Widup made a deliberate choice among various alternatives,” but
offers no evidentiary support for this argument. (DE #29 at 22.)
The Court will not consider this perfunctory and undeveloped
argument. See United States v. Hassebrock, 663 F.3d 906, 914 (7th
Cir. 2011) (“[P]erfunctory and undeveloped arguments . . . are
The Jail’s standard operating procedures state that jail
personnel “shall segregate an inmate if the inmate . . . [n]eeds
protective custody,” and that “[s]ome inmates may have conditions
or situations that call for them to have increased supervision,
“[p]rotective custody” for those “testifying as a witness.”
#29-10 at 1; DE #29-11 at 3-4.)
Shannon claims that these written
policies “assured” that he would be protected if he testified
Constitution does not require prison and jail authorities to ensure
the safety of their detainees.”
Palmer, 327 F.3d at 597 (citation
Shannon maintains that notwithstanding the written policies,
the Jail had a widespread practice of only protecting child
molesters and sexual predators, thereby ensuring that he would
testifying against an inmate.
To impose Monell liability based on
demonstrating that the unlawful practice was so pervasive that
acquiescence on the part of policymakers was apparent and amounted
to a policy decision.”
Dixon v. Cty. of Cook, 819 F.3d 343, 348
(7th Cir. 2016) (citation omitted). “[T]here is no clear consensus
as to how frequently such conduct must occur to impose Monell
liability, except that it must be more than one instance, or even
Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303
(7th Cir. 2009) (citations and internal quotations omitted); see
Dixon, 819 F.3d at 348 (Monell liability “requires more than a
showing of one or two missteps”); Palmer, 327 F.3d at 596 (“[P]roof
of isolated acts of misconduct will not suffice; a series of
violations must be presented to lay the premise of deliberate
Aside from his own experience, Shannon does not
proffer any evidence regarding inmates who testified against other
Because Shannon offers no evidence of a widespread
practice of failing to protect testifying inmates from attack, the
Court grants Defendants’ motion for summary judgment on the Section
1983 claim against the Sheriff’s Department.
Civil Conspiracy and State Constitutional Claims in Count II
In addition to Section 1983 claims, Count II of the Complaint
asserts that “Defendants conspired with each other, and with other
(DE #1, ¶37.)
argue that to the extent that Shannon attempts to assert a civil
conspiracy claim, there is no evidence to support the existence of
a conspiracy between Lain, Widup and other jail administrators.
Shannon does not respond to this argument, and therefore waives
his conspiracy claim.
See Palmer, 327 F.3d at 597–98 (holding
that a party abandoned his claim where he failed to delineate the
claim in opposition to a motion for summary judgment); Laborers'
Int'l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir.
1999) (stating that arguments not presented in response to a
summary judgment motion are waived).
Defendants also argue that, to the extent Count II asserts a
claim based on Article 1, Section 16 of the Indiana Constitution
(see DE #1-1, ¶38), no private right of action exists.
v. Ind. Dep't of Corr., 871 N.E.2d 975, 985 (Ind. Ct. App. 2007)
(“[N]o Indiana court has explicitly recognized a private right of
action for monetary damages under the Indiana Constitution.”).
Shannon responds that he is not seeking damages for violations of
Defendants’ motion for summary judgment as to his civil conspiracy
and state constitutional claims, the motion on these claims is
Intentional Infliction of Emotional Distress Claim
Count I of the Complaint asserts a claim for intentional
infliction of emotional distress against the Sheriff’s Department.5
distress under Indiana law, a plaintiff must prove that the
defendant: “(1) engages in extreme and outrageous conduct (2) which
5 In his response brief, Shannon acknowledges that he does not seek
damages against Lain or Widup in their individual capacities for
state tort claims.
See Ind. Code § 34–13–3–5(b) (“A lawsuit
alleging that an employee acted within the scope of the employee's
employment bars an action by the claimant against the employee
distress to another.” Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind.
Ct. App. 2011) (citation omitted).
The requirements to prove this
tort are rigorous and it is found only when the conduct “exceeds
all bounds typically tolerated by a decent society and causes
mental distress of a very serious kind.
In the appropriate case,
the question can be decided as a matter of law.”
Defendants argue that Shannon has not offered any evidence of
See Jimenez v. CRST Specialized Transportation
Mgmt., Inc., 213 F. Supp. 3d 1058, 1066 (N.D. Ind. 2016) (granting
summary judgment motion where plaintiff presented no evidence that
the conduct caused severe emotional distress); Tracy v. Fin. Ins.
Mgmt. Corp., 458 F. Supp. 2d 734, 747 (S.D. Ind. 2006) (granting
requisite serious mental distress contemplated by this theory of
Shannon’s one-paragraph response cites to no facts
whatsoever regarding his alleged mental injury; rather, it focuses
solely on whether Defendants’ actions in denying him protective
custody and strapping him to a “suicide chair” for 12-13 hours
were extreme and outrageous.
(DE #29 at 26.)
is not a dress rehearsal or practice run; it is the put up or shut
up moment in a lawsuit, when a party must show what evidence it
has that would convince a trier of fact to accept its version of
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852,
859 (7th Cir. 2005) (citations omitted).
Because Shannon has
produced no evidence that he suffered severe emotional distress,
intentional infliction of emotional distress claim.
Count I of the Complaint also alleges a negligence claim
plaintiff seeking damages for negligence must establish (1) a duty
owed to the plaintiff by the defendant, (2) a breach of the duty,
and (3) an injury proximately caused by the breach of duty.”
Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011).
particular act or omission is a breach of duty is generally a
question of fact for the jury.”
N. Ind. Pub. Serv. Co. v. Sharp,
790 N.E.2d 462, 466 (Ind. 2003) (citation omitted).
summary judgment is appropriate on the issue of breach of duty
“where the facts are undisputed and only a single inference can be
drawn from those facts.”
Id. (citation omitted).
When a party is in the custodial care of another, “the
custodian has the duty to exercise reasonable care to preserve the
life, health, and safety of the person in custody.”
County of Steuben, 693 N.E.2d 16, 18 (Ind. 1998); see Trout v.
Buie, 653 N.E.2d 1002, 1008 (Ind. Ct. App. 1995) (noting that
Indiana Code 36-2-13-5(a)(7) sets forth the duty of the Sheriff
“to take care of the county jail and the prisoners there”).
appropriate precautions will vary according to the facts and
circumstances presented in each case.”
Sauders, 693 N.E.2d at 18.
The duty is to “take reasonable steps under the circumstances” to
protect an inmate from harm.
Defendants argue that the
Sheriff’s Department did not breach the duty to provide reasonable
They point to the “keep separate” order for Shannon and
Hurst, as well as evidence that when Shannon advised jail officers
that inmates were acting out against him, he was removed from the
threat by being re-located within the Jail.
that these were reasonable steps to prevent harm to Shannon.
maintain that because the attack by Perez was unforeseeable,
Shannon’s negligence claim fails.
Shannon proffers evidence that jail officers were aware that
(1) Shannon was testifying against another inmate, (2) that a
testifying inmate was under greater risk of harm from other
inmates, and (3) that inmates had assaulted Shannon for being a
snitch twice before Perez’s attack.
He also relies on the Jail’s
While Defendants argue that the Sheriff’s Department
used reasonable care by issuing the “keep separate” order, Widup
testified that if he had been aware that Shannon was testifying
against another inmate, Shannon would have been relocated.
also testified that Shannon would not have been injured if he had
been provided protective custody.
The Court finds that whether
Shannon’s safety under the circumstances is a material fact in
As such, Defendants’ motion for summary judgment on the
negligence claim against the Sheriff’s Department is denied.
For the reasons set forth above, Defendants’ Motion for
Summary Judgment (DE #23) is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED as to: (1) the 42 U.S.C. § 1983 claims
against David E. Lain and the Porter County Sheriff’s Department;
(2) the civil conspiracy and state constitutional claims; and (3)
the intentional infliction of emotional distress claim.
claims are DISMISSED, and defendant David E. Lain is DISMISSED
from this case.
The motion is DENIED as to: (1) the 42 U.S.C. §
1983 claim against John Widup in his individual capacity; (2) the
issue of qualified immunity for John Widup; and (3) the negligence
claim against the Porter County Sheriff’s Department.
September 11, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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