BEST v. STATE OF INDIANA, et al.

Filing 90

ENTRY ON STATE DEFENDANTS' MOTION TO DISMISS - 21 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part. Count I is dismissed as to the State of Indiana, IDOC, and Zatecky. Count I remains pending against S afford, Peterson, Duncan, Hurt, and King. Count II, brought against IDOC and Zatecky, is dismissed. Count III, brought against Zatecky, Peterson, Duncan, Safford, and Hurt, is dismissed. Count IV is dismissed as to IDOC and Zatecky but remains pen ding against Corizon and Dr. Talbot. The State of Indiana, IDOC, and Zatecky are terminated as Defendants in this matter. See entry for details. Signed by Judge Tanya Walton Pratt on 9/14/2017. (MEJ) Modified on 9/14/2017 to fix clerical error(MEJ).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY BEST, JR.,
Plaintiff,
v.
STATE OF INDIANA, INDIANA
DEPARTMENT OF CORRECTION, DUSHAN
ZATECKY, JOHN SAFFORD, JEFFERY
KING, BLAINE HURT, WALTER PETERSON,
HERBERT DUNCAN, CORIZON HEALTH,
INC., and PAUL A. TALBOT M.D.,
Defendants.

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Case No. 1:16-cv-02549-TWP-MJD

ENTRY ON STATE DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) by Defendants the State of Indiana, Indiana Department of Correction
(“IDOC”), Superintendent Dushan Zatecky, and IDOC staff John Safford, Jeffery King, Blaine
Hurt, Walter Peterson, and Herbert Duncan (collectively, “State Defendants”) (Filing No. 21).
After spending more than two years in administrative segregation at the Pendleton Correctional
Facility, Plaintiff Larry Best, Jr. (“Best”) was moved back into the general population at the prison,
and one month later, he was attacked and seriously injured by fellow inmates. Best initiated this
lawsuit against the State Defendants as well as Corizon Health, Inc. (“Corizon”), and Paul A.
Talbot, M.D. (“Dr. Talbot”) for violating his Eighth, Ninth, and Fourteenth Amendment rights by
failing to protect him and having a deliberate indifference toward his health and safety. The State
Defendants filed a Motion to Dismiss, asserting various arguments for dismissal of Best’s four
claims. For the following reasons, the Court grants in part and denies in part the State
Defendants’ Motion to Dismiss.

I. BACKGROUND
The following facts are not necessarily objectively true, but as required when reviewing a
motion to dismiss, the Court accepts as true all factual allegations in the Complaint and draws all
inferences in favor of Best as the non-moving party. See Bielanski v. County of Kane, 550 F.3d
632, 633 (7th Cir. 2008).
Best was an inmate at the Pendleton Correctional Facility (“Pendleton”). He is now an
inmate at Miami Correctional Facility in Bunker Hill, Indiana. While in custody at Pendleton,
Best was held in administrative segregation because of threats of violence against him by members
of a prison gang called the Brotherhood of the Aryan Nation (“Aryan brotherhood”). Members of
the Aryan brotherhood had physically beaten Best and threatened his life because he refused to
join their gang. Because of the attack and threats of violence, Best was held in segregated housing
for more than two years leading up to July 5, 2015 (Filing No. 1 at 2–3).
On July 6, 2015, Defendant King, a caseworker with IDOC, informed Best that he would
be returned to the general population at Pendleton. Best told King that he was fearful to return to
the general prison population because members of the Aryan brotherhood who had attacked and
threatened him were still in Pendleton’s general population. King told Defendant Safford, a unit
team manager with IDOC, about Best’s concern for his safety in the general population. King and
Safford knew that inmates are routinely moved among the housing units and Best likely would not
be safe from the Aryan brotherhood’s threats. Despite this potential threat, Best was moved from
administrative segregated housing into the general prison population. Id. at 3.
Best alleges that “Duncan and Peterson were responsible for investigation of the continued
threat to [Best] if he was returned to general population but failed to make any investigation and
allowed [Best] to return to general population with reckless disregard for [Best’s] safety.” Id.

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When he was moved out of segregated housing, the general population guards and officers were
surprised by Best’s placement in the general prison population because of threats against him. Id.
On August 7, 2015, one month after being moved back to the general prison population,
Best was attacked by members of the Aryan brotherhood. His attackers used large river rocks and
other objects, which the prison officials had placed in front of prison cell houses, presumably for
decoration. These large river rocks were accessible to the violent inmates at Pendleton and could
be and were used as weapons. Although prison officials knew of the gang’s threats against Best,
they failed to take measures to secure the prison to provide for his safety. Id. at 3–4.
The attack occurred while Best was leaving the medical line at the prison infirmary, which
was located in a walkway dubbed “death alley” because it was an area known for inmate-on-inmate
assaults. The area was not well supervised, and Best alleges prison officials, including
Superintendent Zatecky, knew the area was dangerous but were deliberately indifferent to the
safety of the inmates. Id.
Defendant Hurt was the officer in charge at the time of the attack, and he failed to supervise
the movement of inmates through “death alley” to and from the infirmary for their daily
medication. Pendleton was understaffed on the day of Best’s attack, and the staff failed to monitor
inmate movement from place to place and thus could not prevent the attack on Best. Further,
IDOC failed to provide adequate supervision of the inmates at Pendleton. Best alleges that
Superintendent Zatecky knew the prison was “extremely short on staff” because he had admitted
this fact only months before the attack on Best, and this staff shortage allowed gang violence within
the prison and cultivated an environment conducive to inmate violence. Id.
Best sustained severe lacerations and bruises to his head, face, back, shoulders, arms, and
right hand and wrist during the attack. He was bleeding profusely and sought medical treatment

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for his injuries (Filing No. 1 at 4). Dr. Talbot, an employee of Corizon, was on duty at the time of
Best’s attack. At that time, Corizon contracted with Pendleton to provide medical care at the
prison. Dr. Talbot treated Best’s injuries by suturing his cuts and stapling the head wounds, which
would be fastest. However, Dr. Talbot did so without first administering an anesthetic to Best’s
head in disregard to the pain that Best would endure. Id. at 5.
Dr. Talbot failed to monitor Best’s condition after the initial suture and staples to his head.
Instead, Dr. Talbot returned Best to his cell with the severe head injury without anyone to observe
his condition. Because of the lack of monitoring, Best suffered another injury to the head when
he blacked out in his cell, falling against the wall and onto the floor. Best suffered dizziness,
headaches, nausea, and vomiting, as well as other concussion symptoms, and pain in his back,
neck, head, and elbow. Best has difficulty remembering and concentrating. Dr. Talbot, Corizon,
and IDOC delayed processing, referring, and approving diagnostic tests necessary for treatment of
Best’s injuries, and they continued to pursue ineffective treatment for his condition that continues
to worsen. Id. at 5, 11–12.
On September 26, 2016, Best filed this lawsuit asserting claims under 42 U.S.C. § 1983
(“Section 1983”) and state tort law against the State Defendants, Corizon, and Dr. Talbot. Best
alleges his Eighth, Ninth, and Fourteenth Amendment rights were violated because the Defendants
failed to protect him, had a deliberate indifference and reckless disregard toward his health and
safety, provided inadequate medical care, and deprived him of the opportunity to serve his prison
sentence without constant fear of threats and violence. Corizon and Dr. Talbot filed an Answer in
response to Best’s Complaint, and the State Defendants filed a Motion to Dismiss.
II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint
that has failed to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the plaintiff. Bielanski, 550 F.3d at 633.
However, courts “are not obliged to accept as true legal conclusions or unsupported conclusions
of fact.” Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
The complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the
Supreme Court explained that the complaint must allege facts that are “enough to raise a right to
relief above the speculative level.” 550 U.S. 544, 555 (2007). Although “detailed factual
allegations” are not required, mere “labels,” “conclusions,” or “formulaic recitation[s] of the
elements of a cause of action” are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581
F.3d 599, 603 (7th Cir. 2009) (“it is not enough to give a threadbare recitation of the elements of
a claim without factual support”). The allegations must “give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Stated differently,
the complaint must include “enough facts to state a claim to relief that is plausible on its face.”
Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted).
To be facially plausible, the complaint must allow “the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556).

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III. DISCUSSION
In their Motion to Dismiss, the State Defendants address each of the four counts asserted
in Best’s Complaint and advance various arguments for the dismissal of each of the counts as to
specific State Defendants. For the sake of convenience and simplicity, the Court will address each
argument in the order presented by the State Defendants.
A.

Count I against the State of Indiana and IDOC
Count I of the Complaint alleges deliberate indifference under Section 1983. The State

Defendants argue Count I should be dismissed as to the State of Indiana and IDOC because they
are not considered “persons” for purposes of Section 1983. The United States Supreme Court has
held that states, state agencies, and state officials sued in their official capacity for damages are
not “persons” under Section 1983. Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002); Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, they assert, Best’s constitutional claims
brought under Section 1983 against the State of Indiana and IDOC should be dismissed.
In response, Best acknowledges that he “makes no allegation of liability of the State of
Indiana and the IDOC under 42 U.S.C. § 1983.” (Filing No. 27 at 2.) Because the State of Indiana
and IDOC cannot be considered “persons” under Section 1983, and because Best concedes that he
is not alleging liability on the part of the State of Indiana and IDOC under Section 1983, the Court
GRANTS the Motion to Dismiss Count I against the State of Indiana and IDOC.
B.

Count I against Zatecky, Safford, Peterson, and Duncan
Next, the State Defendants argue Count I should be dismissed as to Zatecky, Safford,

Peterson, and Duncan because Section 1983 does not allow for vicarious liability. They rely on
Seventh Circuit case law, which held, “An individual cannot be held liable in a § 1983 action
unless he caused or participated in the alleged constitutional deprivation. . . . [He must be]

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personally involved in the constitutional wrongdoing.” Zimmerman v. Tribble, 226 F.3d 568, 574
(7th Cir. 2000) (citation and quotation marks omitted).
In the Complaint, Best alleges Zatecky was the Superintendent of Pendleton and Safford,
Peterson, and Duncan were employees of IDOC who participated in the decision to reclassify him
as an inmate in the general population. The State Defendants argue that the Complaint alleges
Hurt was the officer responsible for Best’s safety at the time of the attack, but the allegations
regarding Zatecky, Safford, Peterson, and Duncan “begin and end solely with the fact that they
‘were employees of the IDOC working at PCF whom participated in the decisions and omissions
related to the reclassification of [Best].’” (Filing No. 22 at 7, quoting Filing No. 1 at 5, ¶5.) They
also argue that the Complaint fails to allege that Zatecky, Safford, Peterson, and Duncan had any
actual, first-hand knowledge of the threat against Best or that they were present during the attack
or had any personal involvement regarding the attack. They argue that the allegations in Count I
against these individual Defendants is based solely on their employment with IDOC and their
supervisory or managerial roles that required them to oversee the inmate classification decisions.
They contend Zatecky, Safford, Peterson, and Duncan cannot be held liable under Section 1983
simply because they oversee a decision-making process. The State Defendants rely on Ashcroft v.
Iqbal, which held, “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” 556 U.S. at 676.
Best responds that he did not allege Count I against Zatecky, Safford, Peterson, and Duncan
under theories of vicarious liability or respondeat superior. Rather, he brought this claim against
these individual Defendants under Section 1983 for violation of his Eighth Amendment rights
based on these Defendants’ personal involvement in reclassifying his status. Best notes that his

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allegations assert liability based on his removal from the safety of administrative segregation and
placement in the general prison population with gang members who had previously attacked and
threatened him. He argues that King, Safford, Peterson, and Duncan personally participated in the
decision to return him to the general population.
Best highlights various allegations in his Complaint: (1) Best told King that he feared
threats from the gang, and King told Safford about Best’s concern for his safety in the general
population (Filing No. 1 at 3, ¶3); (2) King and Safford knew that inmates are routinely moved
among the housing units and that Best likely would not be safe from the prison gang’s threats but
moved him anyway, id.; and (3) Peterson and Duncan were responsible to investigate the continued
threat to Best if he returned to general population, but they failed to make any investigation and
allowed Best to return to the general prison population, id. at ¶5. Best also points to allegations in
his Complaint that Zatecky was aware that Pendleton was overcrowded and understaffed, thereby
creating a dangerous and potentially violent environment.
Best argues that his allegations against the individual Defendants are sufficient to survive
dismissal because direct participation in a constitutional violation is not necessary to establish
liability; rather, it is enough if a defendant acquiesces in the constitutional violation. See Kelly v.
Municipal Courts for this proposition. 97 F.3d 902, 909 (7th Cir. 1996) (“A defendant will not be
liable for a constitutional violation under § 1983 if the defendant merely exercised supervisory
authority over those who violated the plaintiff’s rights and otherwise failed to participate in any
violation of the plaintiff’s rights. In order for a defendant to be held liable under § 1983, the
plaintiff must establish that the defendant was personally involved or acquiesced in the alleged
constitutional violation.”).

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A review of the Complaint reveals that Best alleged Safford, Peterson, and Duncan had
various levels of knowledge concerning the threats against him and that they were, to varying
degrees, personally involved in the decision to place him back in the general prison population
with an ongoing threat to his safety. These allegations are sufficient at this stage of the litigation
to support an Eighth Amendment claim against Safford, Peterson, and Duncan because they were
personally “involved or acquiesced in” the actions that led to Best’s attack. Therefore, the Court
denies the Motion to Dismiss Count I against Safford, Peterson, and Duncan.
Regarding the claim against Zatecky, the allegations appear to assert liability based solely
on his supervisory authority over those who violated Best’s rights. The allegations against Zatecky
describe a general concern, not an assertion of liability directed at Best’s constitutional injury.
Under Kelly, personally acquiescing in an alleged constitutional violation can support a Section
1983 claim, but merely exercising supervisory authority over those who allegedly violated a
plaintiff’s rights is not enough. Best’s Complaint alleges a mere exercise of supervisory authority
on the part of Zatecky. Thus, the Court GRANTS the State Defendants’ Motion to Dismiss Count
I against Zatecky.
C.

Count II against IDOC and Zatecky
Under Count II of the Complaint, Best alleges a claim against IDOC and Zatecky for

violating the Eighth Amendment by overcrowding and understaffing Pendleton, thereby increasing
the likelihood for violence and attacks among inmates generally, and which resulted in the attack
on Best specifically. In his claim for relief under Count II, Best requests a declaratory judgment
that IDOC and Zatecky violated the “Constitution of the United States” and “compensatory
damages for personal injury, pain and suffering, emotional distress and for future pain and
suffering and punitive damages.” (Filing No. 1 at 9.)

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The State Defendants assert that Count II should be dismissed because the Eleventh
Amendment bars damages claims in federal court against the state, its agencies, and its officials.
They argue that Best alleges only conclusory statements that Zatecky knew Pendleton was
overcrowded and understaffed and that, as a result, inmates suffered an increased threat of
violence. They further argue that the allegations in the Complaint fail to provide any factual
support regarding how Zatecky knew of overcrowding and understaffing or how Zatecky had any
personal involvement regarding Best’s attack or the conditions of his confinement. The State
Defendants argue Zatecky is named as a defendant simply because he is the Superintendent of
Pendleton, and thus, the claim against him is in his official capacity only. Because Best requests
compensatory monetary damages, the State Defendants assert that the Eleventh Amendment bars
this claim in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99–100
(1984) (“an unconsenting State is immune from suits brought in federal courts by her own citizens
as well as by citizens of another state,” and “[t]his jurisdictional bar applies regardless of the nature
of the relief sought,” and furthermore, “42 U.S.C. § 1983 does not override States’ Eleventh
Amendment immunity”).
Best responds that the Fourteenth Amendment makes the Eighth Amendment applicable to
the states, the Eighth Amendment prohibits cruel and unusual punishment, and he asserted this
claim on the basis of an Eighth Amendment violation for failing to provide a safe environment for
Best and for deliberate indifference toward his safety and medical care. Harper v. Albert, 400 F.3d
1052, 1065 (7th Cir. 2005) (Eighth Amendment is applicable to the States through the Due Process
clause of the Fourteenth Amendment and prohibits cruel and unusual punishment). Best argues
that the Eleventh Amendment is not a bar to this claim because it is specifically brought through
the Fourteenth Amendment’s application of the Eighth Amendment to the states. Best then asserts

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that he has alleged sufficient facts to support a claim against IDOC and Zatecky for creating the
dangerous environment at Pendleton that led to his attack.
Replying to Best, the State Defendants do not again raise the Eleventh Amendment
argument, but rather, they explain the Eighth Amendment is violated when an inmate is attacked
only “if deliberate indifference by prison officials effectively condones the attack by allowing it
to happen.” Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996). They argue that “general requests
for help and expressions of fear are insufficient to alert guards to the need for action,” citing to
Klebanowski v. Sheahan, 540 F.3d 633, 639 (7th Cir. 2008) (Filing No. 30 at 2). A deliberate
indifference claim requires more than a general fear or request on the part of the inmate. Id. A
failure to protect claim requires more than just knowledge of a mere general risk of violence in a
correctional facility. Brown v. Budz, 398 F.3d 904, 913 (7th Cir. 2005). The State Defendants
assert Best’s allegations against IDOC and Zatecky are only broad generalizations about the
inherently dangerous life inside a prison, which is not sufficient to state a claim under the Eighth
Amendment.
After reviewing Best’s Complaint as a whole as well as Count II specifically, the Court
determines that Count II has not been sufficiently pled to support an Eighth Amendment claim
against IDOC and Zatecky.

Concerning these Defendants, the allegations show a broad,

generalized concern about prison safety, overcrowding, and understaffing. Under Seventh Circuit
standards, the allegations fall short by not providing a minimal factual basis regarding IDOC and
Zatecky’s knowledge of and involvement with Best’s circumstances. Best alleges that Zatecky
“knew or should have known of the excessive risk to Plaintiff’s safety and failed to protect
Plaintiff,” (Filing No. 1 at 9, ¶8); however, this unsupported assertion is not sufficient to support

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Best’s claim. Therefore, the Court GRANTS the State Defendants’ Motion to Dismiss Count II
against IDOC and Zatecky.
D.

Count III against Zatecky, Peterson, Duncan, Safford, and Hurt
Best asserts a claim under Count III against Zatecky, Peterson, Duncan, Safford, and Hurt

for compensatory damages for personal injury, pain and suffering, emotional distress, and future
pain and suffering because of their decision to reassign Best to the general prison population
despite knowing the threat of violence against him by a gang that had previously attacked him.
The State Defendants assert that Count III should be dismissed because Zatecky, Peterson,
Duncan, Safford, and Hurt are statutorily immune from state law tort claims under the Indiana Tort
Claims Act (“the Act”). They explain Best can bring these state law tort claims only against a
government agency, not these Defendants individually.
The State Defendants argue that if a plaintiff alleges a government employee was acting
within the scope of their employment, the plaintiff is absolutely barred from bringing a claim
against the employee personally unless the government entity responds that the employee was
acting outside the scope of their employment. Ind. Code § 34-13-3-5. If a plaintiff does not allege
that the employee was acting within the scope of their employment, the plaintiff still cannot sue
the employee personally unless the complaint alleges that the employee’s acts were criminal,
clearly outside the scope of the employee’s employment, malicious, willful and wanton, or
calculated to benefit the employee personally. Id. The complaint cannot assert these allegations
in conclusory fashion; rather, the plaintiff must assert a reasonable factual basis to support his
allegations. Id.
The State Defendants argue that Best’s Complaint alleges Zatecky, Peterson, Duncan,
Safford, and Hurt are liable based on their decision to reclassify Best and move him to the general

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prison population, which are acts within the scope of their employment. Each of these individual
Defendants was an employee of IDOC at the time of the incidents, and each of them was acting
within the scope of their employment. The State Defendants have not answered that they were
acting outside the scope of their employment. Best presents no allegations that these individual
IDOC employees’ acts were criminal, malicious, willful and wanton, or calculated to benefit the
employee personally. Thus, they assert, under the Act, Best’s state law tort claims are absolutely
barred against Zatecky, Peterson, Duncan, Safford, and Hurt.
Best first responds that the Act cannot shield these individual Defendants from liability for
federal constitutional violations brought under Section 1983. Best also argues that the individual
Defendants are not immune under the Act because,
[T]here 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. To the extent that [plaintiff’s] allegations relate to the failure
to perform this duty, they are sufficient to withstand a claim of immunity.
Roberts v. State, 307 N.E.2d 501, 505 (Ind. Ct. App. 1974) (citations omitted).
The Court notes that Best correctly points out that the Act cannot serve as a basis to shield
Zatecky, Peterson, Duncan, Safford, and Hurt from liability for federal constitutional violations
brought under Section 1983. However, this was not the argument of the State Defendants. Rather,
they argue that the Act precludes state law tort claims, not Section 1983 claims.
The 1974 Roberts decision of the Indiana Court of Appeals did not address the Act, which
is applicable to and controlling over Best’s state law tort claims alleged in Count III. The Act is
clear that, in order for Best to bring state law tort claims against the individual IDOC defendants,
he must allege with a sufficient factual basis that their conduct was outside the scope of their
employment and was criminal, malicious, willful and wanton, or calculated to benefit the
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employee personally. Best’s Complaint fails to make any of these allegations against Zatecky,
Peterson, Duncan, Safford, and Hurt personally. Best’s Complaint makes clear that his allegations
in Count III are for state law tort claims based on these individuals’ conduct while acting within
the scope of their employment with IDOC. Therefore, the Act bars these state law tort claims
against Zatecky, Peterson, Duncan, Safford, and Hurt, and the Court GRANTS the State
Defendants’ Motion to Dismiss Count III against them.
E.

Count IV against IDOC, Zatecky, Corizon, and Dr. Talbot
Count IV of the Complaint is asserted against IDOC, Zatecky, Corizon, and Dr. Talbot. In

Count IV, Best alleges that these Defendants were deliberately indifferent to his medical condition,
delayed his necessary treatment, and provided inadequate medical care. Best alleges these claims
under the Eighth, Ninth, and Fourteenth Amendments and requests compensatory damages for
personal injury, pain and suffering, emotional distress, and future pain and suffering.
The State Defendants ask the Court to dismiss Count IV against IDOC and Zatecky because
the Act provides immunity to IDOC and Zatecky against liability for the acts or omissions of
others, see Indiana Code § 34-13-3-3(10). They assert that this claim stems solely from the premise
that IDOC and Zatecky are liable for the acts or omissions of Corizon and Dr. Talbot in providing
inadequate medical care. Relying on Bartholomew County v. Johnson, the State Defendants argue
if a loss results from the acts or omissions of a governmental entity’s contractor, then the
governmental entity is immune from liability for the loss even if it relates to a non-delegable duty.
995 N.E.2d 666, 678–79 (Ind. Ct. App. 2013). The State Defendants point out that Indiana Code
§ 34-13-3-3(10) does not contain an exception to the grant of immunity to government agencies
for the acts or omissions of their contractors, again relying on Bartholomew County v. Johnson.

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Pointing to the allegations in the Complaint, the State Defendants note that Best is seeking
to hold IDOC and Zatecky liable for the acts and omissions of Corizon and Dr. Talbot relating to
the medical care of Best. IDOC has delegated the responsibility of providing medical care via its
contract with Corizon. They argue that the allegations do not support direct negligence on the part
of IDOC or Zatecky, and the Act provides immunity to them against liability for the medical care
provided or omitted by Corizon and Dr. Talbot.
The State Defendants also assert an additional basis to dismiss Count IV against IDOC and
Zatecky: IDOC and Zatecky are not considered “persons” under Section 1983, so they cannot be
held liable for any inadequate medical care under Section 1983, and the allegations fail to assert
that Zatecky had any personal knowledge or involvement in Best’s medical care.
Responding to the State Defendants’ arguments, Best again relies on the 1974 Roberts
decision of the Indiana Court of Appeals and asserts that the decision established a private duty
owed by the State Defendants to Best to “take reasonable precautions to preserve his life, health
and safety. Defendants had a non-delegable duty.” (Filing No. 27 at 9–10.) Best also quotes from
a portion of the Bartholomew County decision, which explains a principal generally is not liable
for the negligence of its independent contractor but there is an exception to this general rule when
the duty is non-delegable. See Bartholomew County, 995 N.E.2d at 675. Based on the language
in Bartholomew County, Best argues that the State of Indiana may delegate to a private entity, like
Corizon, its responsibility for providing medical care to prison inmates, but it cannot escape
liability for inadequate medical care on the basis of that delegation to a third party. Best further
argues that he has pled a sufficient factual basis to support an Eighth Amendment claim for
inadequate medical care against IDOC and Zatecky.

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The Court determines that Count IV against IDOC and Zatecky for inadequate medical
care must be dismissed to the extent that the claim is asserted under state tort law. As the State
Defendants correctly point out, the Act provides, “[a] governmental entity or an employee acting
within the scope of the employee’s employment is not liable if a loss results from the . . . act or
omission of anyone other than the governmental entity or the governmental entity’s employee.”
Ind. Code § 34-13-3-3(10).
The language from the Bartholomew County decision on which Best relies—a quotation
from a 1996 opinion—actually is just an explanation of old Indiana case law and does not reflect
the current state of the law or the holding in Bartholomew County. Later in the Bartholomew
County opinion, the court made clear that “Indiana Code Section 34-13-3-3(10) would be useless
in situations involving an independent contractor if it did not apply to non-delegable duties, and
we presume that the legislature did not enact a useless provision.” Bartholomew County, 995
N.E.2d at 678–79 (citation and quotation marks omitted). Therefore, the Act does provide
immunity, even for non-delegable duties, to IDOC and Zatecky for the acts or omissions of
Corizon and Dr. Talbot in the provision of medical care to the extent the claim is brought pursuant
to state tort law.
Regarding the claim for inadequate medical care as a constitutional violation, the State
Defendants correctly assert that IDOC and Zatecky are not “persons” for purposes of Section 1983.
States, state agencies, and state officials sued in their official capacity for damages are not
“persons” under Section 1983. Lapides, 535 U.S. at 617; Will, 491 U.S. at 71. Thus, Best’s claim
against IDOC and Zatecky for inadequate medical care as a constitutional violation must be
dismissed. Furthermore, the allegations in the Complaint do not provide a sufficient factual basis
to assert a constitutional claim for inadequate medical care against Zatecky in his individual

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capacity. Therefore, the Court GRANTS the State Defendants’ Motion to Dismiss Count IV
against IDOC and Zatecky.
IV. CONCLUSION
For the above reasons, the State Defendants’ Motion to Dismiss (Filing No. 21) is
GRANTED in part and DENIED in part. Count I is dismissed as to the State of Indiana, IDOC,
and Zatecky. Count I remains pending against Safford, Peterson, Duncan, Hurt, and King. Count
II, brought against IDOC and Zatecky, is dismissed. Count III, brought against Zatecky, Peterson,
Duncan, Safford, and Hurt, is dismissed. Count IV is dismissed as to IDOC and Zatecky but
remains pending against Corizon and Dr. Talbot. 1 The State of Indiana, IDOC, and Zatecky are
terminated as Defendants in this matter.
SO ORDERED.
Date: 9/14/2017

DISTRIBUTION:
Bessie M Davis
LAW OFFICE OF BESSIE M. DAVIS, LLC
[e-mail]

Benjamin Myron Lane Jones
INDIANA ATTORNEY GENERAL
[e-mail]

Jeb Adam Crandall
BLEEKE DILLON CRANDALL, PC
[e-mail]

Jennifer Elizabeth Lemmon
INDIANA ATTORNEY GENERAL
[e-mail]

Britney Jade McMahan
BLEEKE DILLON CRANDALL, PC
[e-mail]

Kelly Suzanne Witte
INDIANA ATTORNEY GENERAL
[e-mail]

1

The claims that have been dismissed are dismissed with prejudice. See Remijas v. Neiman Marcus Grp., LLC, 794
F.3d 688, 697 (7th Cir. 2015) (“dismissal under Rule 12(b)(6) . . . is a dismissal with prejudice”).

17