JACKSON and COOK v. HOLCOMB et al

Filing 207

ORDER ON MOTIONS TO DISMISS: Defendant Aqua of Indiana's motion to dismiss, dkt. 142 , is GRANTED. All claims against it are dismissed with prejudice. The clerk is directed to terminate Aqua Indiana as a defendant on the docket in this case and in all related cases filed before December 2023. Defendant Town of Ingalls' motion to dismiss, dkt. 137 , is GRANTED as to Plaintiff's § 1983 Monell claim against it. Plaintiffs are ordered to show cause by October 25, 2024, why their negligence claim against the Town of Ingalls should not be dismissed for the same reasons the Court has dismissed the negligence claim against Aqua of Indiana. See Order. Signed by Judge James Patrick Hanlon on 9/26/2024.(Copies mailed per Distribution list.) (LF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSHUA JACKSON,
EDWARD C. COOK,

)
)
)
Plaintiffs,
)
)
v.
)
)
DENNIS REAGAL Warden,
)
MAGGIE BRYANT,
)
CENTURION HEALTH OF INDIANA, LLC, )
DANIELLE STASIAK,
)
KEVIN ORME,
)
WILLIAM CALLAHAN,
)
BOBBY LATOUR,
)
JEFFERY MEECE,
)
CHRIS ERTEL,
)
VINCENT STANLEY,
)
ANDY BAGIENSKI,
)
AQUA INDIANA, INC.,
)
TOWN OF INGALLS, INDIANA,
)
)
Defendants.
)

No. 1:21-cv-03120-JPH-KMB

ORDER ON MOTIONS TO DISMISS
Joshua Jackson and Edward Cook were inmates at Pendleton
Correctional Facility ("PCF") where they, along with hundreds of other inmates,
were exposed to contaminated water. See dkt. 106. They have filed this case
against Indiana Department of Correction officials; medical providers at PCF;
the Town of Ingalls, which provided water to PCF; and Aqua Indiana, which
managed the Town of Ingalls's water system. See id. This case is proceeding
as the lead case regarding Legionnaires' disease at PCF, with other inmates
proceeding in related actions. See dkt. 117 at 2.

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Defendants Town of Ingalls and Aqua Indiana have filed motions to
dismiss the claims against them. Dkt. [137]; dkt. [142]. For the reasons
below, those motions are GRANTED.
I.
Facts and Background
Because Defendants have moved for dismissal under Rule 12(b)(6), the
Court accepts and recites "the well-pleaded facts in the complaint as true."
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
Several years before 2021, Defendants stopped testing and maintaining
PCF's water system. Dkt. 106 at 4. That caused the deterioration of pipes and
stagnant water, leading to the distribution of contaminated water throughout
PCF. Id. at 4–5. The contamination included legionella bacteria, which causes
Legionnaires' disease—a "severe form of pneumonia"—and its milder cousin,
Pontiac fever. Id. at 5.
In September 2021, while Mr. Jackson and Mr. Cook were inmates at
PCF, they suffered "severe symptoms of Legionnaires' disease," including deep
coughs, fevers, respiratory issues, nausea, diarrhea, cardiovascular issues, and
other symptoms. Id. at 6, 8. The next month, a PCF inmate tested positive for
legionella and PCF leadership told inmates and staff not to drink the water. Id.
at 6.
PCF's water was provided by the Town of Ingalls, which contracted with a
private company, Aqua Indiana, to manage its water systems. Id. at 4. Mr.

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Jackson and Mr. Cook allege that the Town of Ingalls and Aqua Indiana "failed
to provide safe potable water to PCF, resulting in [their] illness." Id. at 7.
Mr. Jackson and Mr. Cook brought this action pro se in December 2021.
Dkt. 2. The Court recruited counsel for Mr. Jackson and Mr. Cook in
November 2022. Dkt. 75. The amended complaint raises Eighth Amendment
and Indiana-law negligence claims against Indiana Department of Correction
officials; medical providers at PCF; the Town of Ingalls, which provided water to
PCF; and Aqua Indiana, which managed the Town of Ingalls's water system.
Dkt. 106. The Town of Ingalls and Aqua Indiana have filed motions to dismiss
the claims against them for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Dkt. [137]; dkt. [142].
II.
Rule 12(b)(6) Standard
Defendants may move under Federal Rule of Civil Procedure 12(b)(6) to
dismiss claims for "failure to state a claim upon which relief can be granted."
To survive a Rule 12(b)(6) motion to dismiss, a complaint must "contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A facially plausible claim is
one that allows "the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Id. In other words, a complaint "must
allege enough details about the subject-matter of the case to present a story
that holds together," Bilek v. Fed. Ins. Co., 8 F.4th 581, 586 (7th Cir. 2021),

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"but it need not supply the specifics required at the summary judgment stage."
Graham v. Bd. of Educ., 8 F.4th 625, 627 (7th Cir. 2021).
When ruling on a 12(b)(6) motion, the Court "accept[s] the well-pleaded
facts in the complaint as true, but legal conclusions and conclusory allegations
merely reciting the elements of the claim are not entitled to this presumption of
truth." McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). "It is
enough to plead a plausible claim, after which a plaintiff receives the benefit of
imagination, so long as the hypotheses are consistent with the complaint."
Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir. 2017).
Indiana substantive law governs Mr. Jackson's and Mr. Cook's
negligence claim. See Webber v. Butner, 923 F.3d 479, 480–81 (7th Cir. 2019).
Absent a controlling decision from the Indiana Supreme Court, the Court does
its best to predict how that court would rule on the issues of law. Mashallah,
Inc. v. West Bend Mutual Insurance Co., 20 F.4th 311, 319 (7th Cir. 2021). In
doing so, the Court may consider decisions from the Indiana Court of Appeals.
See id.
III.
Analysis
A. Eighth Amendment claims
Mr. Jackson and Mr. Cook allege Eighth Amendment cruel and unusual
punishment claims under 42 U.S.C. § 1983 against the Town of Ingalls and
Aqua Indiana. Dkt. 106 at 2, 9–11. In response to Aqua Indiana's motion to
dismiss, however, Mr. Jackson and Mr. Cook "concede that at this point they

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have not alleged sufficient facts for Aqua to be considered a state actor" as
required for § 1983 liability. Dkt. 165 at 12. This claim against Aqua Indiana
is therefore dismissed under that concession.
That leaves the Town of Ingalls which, as a municipality, can be held
liable only under Monell for its own actions—but not "for the misdeeds of
employes or other agents." Flores v. City of S. Bend, 997 F.3d 725, 731 (7th
Cir. 2021) (explaining Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). "The
critical question under Monell is whether a policy or custom of a municipal
entity caused a constitutional deprivation." Gonzalez v. McHenry Cnty., Ill., 40
F.4th 824, 829 (7th Cir. 2022). So, for "a Monell claim to survive a motion to
dismiss, a plaintiff must plead facts that plausibly suggest that: (1) she was
deprived of a constitutional right; (2) the deprivation can be traced to some
municipal action (i.e. a 'policy' or 'custom') . . .; (3) the policy or custom
demonstrates municipal fault, i.e., deliberate indifference; and (4) the
municipal action was the moving force behind the federal-rights violation."
Thomas v. Neenah Joint Sch. Dist., 74 F.4th 521, 524 (7th Cir. 2023).
The Town of Ingalls argues that Mr. Jackson's and Mr. Cook's Eighth
Amendment Monell claim must be dismissed because they have not satisfied
that pleading standard. Dkt. 138 at 6–13. Mr. Jackson and Mr. Cook respond
that their Monell claim is plausible because they allege that the Town of Ingalls
had a policy or custom of failing to test and maintain PCF's water supply. Dkt.
146 at 8–9.

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"[T]o state a facially plausible" Monell claim, "the factual allegations . . .
must allow [the Court] to draw the reasonable inference that the [Town]
established a policy or practice" that caused PCF's contaminated water.
McCauley, 671 F.3d at 618. Mr. Jackson and Mr. Cook have not met that
standard here. Instead, they vaguely allege that "Defendants" (perhaps
including the Town of Ingalls) stopped testing and maintaining PCF's water
system and that the Town of Ingalls "failed to provide safe potable water to
PCF." Dkt. 106 at 4, 7.
Those allegations are too vague and conclusory to meet the burden to
"provide some specific facts" to support a Monell claim. McCauley, 671 F.3d at
616; Thomas, 74 F.4th at 523 ("Threadbare recitals of a cause of action,
supported by mere conclusory statements, do not suffice."). While the "degree
of specificity required is not easily quantified," Mr. Jackson and Mr. Cook
"must give enough details about the subject-matter of the case to present a
story that holds together." McCauley, 671 F.3d at 616. But for the Town of
Ingalls, the complaint tells no story at all. While it alleges that the Town of
Ingalls may have stopped testing water and failed to provide safe water to PCF,
it offers no reason to believe that it did so under a policy, custom, or practice—
much less one that was "the moving force behind the federal-rights violation."
Gonzalez v. McHenry Cnty., Ill., 40 F.4th 824, 829 (7th. Cir. 2022); see
Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010) (allegations must
provide detail to "show how, in the plaintiff's mind at least, the dots should be
connected").
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Nor do the allegations support Monell liability based on a failure to create
a policy. See Taylor v. Hughes, 26 F.4th 419, 436 (7th Cir. 2022) (explaining
Monell liability in "the rare case" when "a violation of federal rights is a highly
predictable consequence of a municipalities' failure to act"). Mr. Jackson and
Mr. Cook do not explain why the Town of Ingalls would be required to create a
policy specific to PCF's water system when "there is no duty on the part of a
public utility . . . to inspect the devices, apparatus, or fixtures of a responsible
patron on the patron's property, located at a point beyond the meter, which is
the point of delivery of the utility." KMC, LLC v. E. Heights Utils., Inc., 144
N.E.3d 773, 776 (Ind. Ct. App. 2020). Indeed, failure to make a policy can
support Monell liability on an Eighth Amendment claim only if it "creates a risk
that is sufficiently obvious as to constitute deliberate indifference." Glisson v.
Ind. Dept. of Corr., 849 F.3d 372, 381 (7th Cir. 2017). Mr. Jackson and Mr.
Cook have not alleged that the risk of contaminated water was obvious to the
Town of Ingalls, or explained why that may be reasonably inferred. See dkt.
106; dkt. 146; Eagan v. Dempsey, 987 F.3d 667, 694 (7th Cir. 2021) (Even "an
official's failure to alleviate a significant risk that he should have perceived but
did not . . . cannot under our cases be condemned as the infliction of
punishment.").
Mr. Jackson and Mr. Cook therefore have not alleged "enough . . .
factual content to nudge [the claim] across the line from conceivable to
plausible." McCauley, 671 F.3d at 616. Indeed, they cite no case in which
similarly sparse allegations were sufficient to plausibly allege a Monell claim.
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See dkt. 146 at 6–9; Thomas, 74 F.4th at 524 ("All requirements must be
scrupulously applied" to Monell claims.).
Moreover, the lack of allegations regarding any Town of Ingalls policy or
custom contrasts with the detailed allegations about water conditions within
PCF. The complaint explains how the State Defendants' lack of testing and
maintenance within PCF led to deteriorated pipes where stagnant water could
harbor contaminants. See dkt. 106 at 5. And it alleges that the State
Defendants allowed the contamination to persist "by neither improving nor
fixing the water system infrastructure." Id. at 7. Missing are any similar
allegations about the Town of Ingalls. See id. The complaint therefore contains
an "obvious alternative explanation" for PCF's water contamination, so it "stops
short of the line between possibility and plausibility" for the claim against the
Town of Ingalls. McCauley, 671 F.3d at 616; see Taylor v. Salvation Army Nat'l
Corp., 110 F.4th 1017, 1031–32 (7th Cir 2024).
The Eighth Amendment Monell claim against the Town of Ingalls is
therefore dismissed.
B. Indiana-law negligence claims
Aqua Indiana argues that Mr. Jackson and Mr. Cook have not plausibly
pleaded a negligence claim against it because they have not alleged facts
supporting a duty that Aqua Indiana owed them. Dkt. 143 at 10–11. Mr.
Jackson and Mr. Cook respond that Aqua Indiana had a duty "to provide safe
potable water to PCF." Dkt. 165 at 7–9. They therefore identify "the central

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concern of the Complaint" as Aqua Indiana's alleged negligence before the
water was delivered to PCF. Id.
The parties therefore appear to agree that Aqua Indiana had no duty to
maintain PCF's plumbing or otherwise take any action within the facility. See
dkt. 143 at 10; dkt. 165 at 7–9. To the extent that Mr. Jackson and Mr. Cook
argue otherwise, they cannot succeed because Aqua Indiana did not owe a duty
within PCF under Indiana law, and they do not argue that a new duty should
be recognized. See KMC, LLC v. E. Heights Utils., Inc., 144 N.E.3d 773, 776
(Ind. Ct. App. 2020) ("[T]here is no duty on the part of a public utility . . . to
inspect the devices, apparatus, or fixtures of a responsible patron on the
patron's property, located at a point beyond the meter, which is the point of
delivery of the utility."); cf. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 454–
56 (Ind. 2011) (holding that the government's duty to exercise reasonable care
to keep streets safe does not apply "[a]bsent ownership, maintenance, or
control of the county roadway").
As for any duty before the water was delivered to PCF, Mr. Jackson and
Mr. Cook allege that Aqua Indiana had a duty to Plaintiffs "to exercise ordinary
care" that it breached in four ways. Dkt. 165 at 8.
The first three of those alleged breaches relate to failing to mitigate,
protect, and warn inmates of a "known water contamination," "namely
legionella pneumophila, helicobacter pylori, and/or other bacteria that pose a
risk to human health." Id. But the only alleged "known" contamination
occurred within PCF. See dkt. 106 at 6, 8 (allegations about State Defendants'
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knowledge of contaminated water within PCF). While Mr. Jackson and Mr.
Cook allege—with no factual heft—that Aqua Indiana "failed to provide safe
potable water to PCF," they do not allege that the bacterial contamination at
issue existed before the water was delivered to PCF or that any such
contamination was "known" before the water left Aqua Indiana's control. Dkt.
106 at 7. As explained above, Aqua Indiana had no duty to mitigate, protect,
or warn inmates of water contamination that developed after the water entered
PCF. KMC, 144 N.E.3d at 776 (holding that public utility has no duty to
inspect plumbing beyond the meter "which is the point of delivery of the
utility"); Price, 954 N.E.2d at 454–56.
Finally, the complaint alleges that Aqua Indiana generally "fail[ed] to
provide preventative methods to reduce the risk of foreseeable harm." Id. But
Mr. Jackson and Mr. Cook cite no legal support for a duty that Aqua Indiana
owed PCF inmates to provide preventative measures. See dkt. 165 at 8–9. The
duty is instead "to supply enough water of good quality" to the facility. KMC,
144 N.E.3d at 776. Yet Mr. Jackson and Mr. Cook have not alleged that the
bacterial contamination at issue was in the water before it entered PCF—much
less that Aqua Indiana knew or should have known of any such contamination,
See dkt. 106. So, as with the Monell claim, the allegations supporting the
negligence claim are too vague and conclusory to meet the burden of
"provid[ing] some specific facts" to support a negligence claim against Aqua
Indiana. McCauley, 671 F.3d at 616; Thomas, 74 F.4th at 523 ("Threadbare
recitals of a cause of action, supported by mere conclusory allegations, do not
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suffice."). Again, the Plaintiffs have failed to allege "enough details about the
subject-matter of the case to present a story that holds together." McCauley,
671 F.3d at 616. The negligence claim against Aqua Indiana therefore must be
dismissed.
The Town of Ingalls, however, argues only that the Court should
relinquish supplemental jurisdiction over the negligence claim under 28 U.S.C.
§ 1367(c)(3) if the Court dismisses the § 1983 claim against it. Dkt. 138 at 13.
This argument misreads § 1367(c)(3), which contemplates relinquishing
supplemental jurisdiction over state law claims when all federal claims in the
case have been dismissed. Here, federal claims remain in this case, just not
against the Town. See Hansen v. Bd. of Trs. of Hamilton, 551 F.3d 599, 608
(7th Cir. 2008) (district court’s discretion to relinquish jurisdiction under §
1367(c)(3) was never triggered because the court did not dismiss all claims over
which it had original jurisdiction). The only other basis for relinquishing
jurisdiction advanced by the Town is contained in one sentence in its reply
brief that vaguely asserts that the negligence claim may raise novel or complex
state law issues, without providing any detail or citation to relevant law. Dkt.
156 at 13-14. The Town of Ingalls therefore has not shown that relinquishing
supplemental jurisdiction is appropriate at this point in this case.
Although the Town of Ingalls did not move to dismiss Plaintiffs' state law
negligence claim against it, it appears the claim should be dismissed for the
same reasons the negligence claim against Aqua Indiana is subject to
dismissal. Thus, Plaintiffs are ordered to show cause by October 25, 2024,
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why their negligence claim against the Town of Ingalls should not be dismissed
for the same reasons the Court has dismissed the negligence claim against
Aqua of Indiana. The Town of Ingalls may respond by November 1, 2024.
C. Application to short-form complaints
The Court previously designated this action to be the "Lead Action" for
purposes of consolidating the filings in over seventy related civil rights cases
filed before December 2023 by various inmates at Pendleton Correctional
Facility ("PCF") regarding allegedly unsafe water at that facility. See dkt. 161 at
3. This Order therefore also applies to all related actions filed before December
2023 (referred to as "Batch 1" cases, as listed in dkt. 157-1). The clerk is
directed to enter a text-only entry in each of those cases with reference to this
Order.
IV.
Conclusion
Defendant Aqua of Indiana's motion to dismiss, dkt. [142], is GRANTED.
All claims against it are dismissed with prejudice. The clerk is directed to
terminate Aqua Indiana as a defendant on the docket in this case and in all
related cases filed before December 2023. 1
Defendant Town of Ingalls' motion to dismiss, dkt. [137], is GRANTED as
to Plaintiff's § 1983 Monell claim against it. Plaintiffs are ordered to show

Mr. Jackson and Mr. Cook mention in their response to Aqua Indiana's motion to
dismiss that they "reserve all rights to amend their pleadings." Dkt. 165 at 12. In
order to amend the complaint, they would have to show good cause for extending the
deadline for motions for leave to amend the pleadings under Federal Rule of Civil
Procedure 16(b)(4) and that "justice . . . requires" leave to amend under Federal Rule of
Civil Procedure 15(a)(2).
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cause by October 25, 2024, why their negligence claim against the Town of
Ingalls should not be dismissed for the same reasons the Court has dismissed
the negligence claim against Aqua of Indiana.
SO ORDERED.
Date: 9/26/2024

Distribution:
JOSHUA JACKSON
222115
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
P.O. Box E
NEW CASTLE, IN 47362
EDWARD C. COOK
998849
INDIANA STATE PRISON
INDIANA STATE PRISON
Inmate Mail/Parcels
One Park Row
MICHIGAN CITY, IN 46360
All electronically registered counsel

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