ROBERTSON v. KONKLE et al

Filing 53

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - 36 Motion for Summary Judgment is GRANTED. Final Judgment consistent with this Order shall issue separately. See Order for details. Signed by Judge Tanya Walton Pratt on 3/11/2025. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HERBERT E. ROBERTSON,
Plaintiff,
v.
KONKLE SGT.,
DEME Officer,
OAKSUN,
Defendants.

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Case No. 1:22-cv-02043-TWP-CSW

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed by Defendants
Momar Deme ("Officer Deme"), Eric Konkle ("Sergeant Konkle"), and Augustine Okosun
("Officer Okosun") (collectively, "Defendants") (Dkt. 36). Plaintiff Herbert E. Robertson ("Mr.
Robertson") initiated this action on October 18, 2022, alleging the Defendants violated his Eighth
Amendment rights through deliberate indifference when he slipped and fell on trash while an
inmate at Pendleton Correctional Facility ("Pendleton") (Dkt. 2). Defendants argue they are
entitled to summary judgment because the conditions of Pendleton did not present a sufficiently
serious hazard that rose to the level of an Eighth Amendment violation, and they deny that they
were deliberately indifferent to the conditions of Pendleton. For the reasons stated below, summary
judgment is granted.
I.

BACKGROUND

On a motion for summary judgment, the Court views and recites the evidence in the light
most favorable to the non-moving party and draws all reasonable inferences in that party's favor.
Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572 (7th Cir. 2021).

In 2021, Mr. Robertson was an inmate with the Indiana Department of Corrections
("IDOC") and housed at Pendleton (Dkt. 2 at 2). He was held in G Cell House during the events
related to his Complaint. Id. at 4. The Defendants were correction officer employees of the IDOC
working at Pendleton during the relevant time. (Dkt. 16 at 1).
G Cell House is an administrative segregation unit and persons incarcerated in G Cell
House were restrained any time they were moved (Dkt. 37-1 at 11:9–14). On February 7, 2021,
Mr. Robertson sustained an injury which caused "limited mobility," "severe pain," and caused his
leg to "give out" sometimes. Id. at 14:20–24, 15:11–12. On May 22, 2021, Officers Deme and
Okosun escorted Mr. Robertson from his cell to take a shower. Id. at 18:6–13. Mr. Robertson
describes the events as follows:
Officer Deme and Okosun came to my cell and told me it was shower time, had me
cuff up, they placed the security strap on my handcuffs. Officer Okosun was
walking behind me up against the security fencing. Officer Deme was on my left
arm, holding me, helping me to limp along . . . As we’re going down the range,
there’s water on the floor, there’s a little bit of trash, different things of that nature
. . . [w]hen we go to down to the trash bag, there was nowhere for us to go. It was
almost at the end of the range. When we got there, you know, I went to stop and he
said, “[w]hen you’re ready, step over.” I went to step over and my leg gave out and
it pulled me and him both to the—forward to the ground.
Id. at 18:21–19:21.
Mr. Robertson's escort to the shower was captured on facility video cameras (Dkt. 37-2).
The video evidence shows the range containing a few pieces of trash and one trash bag at the end
of the range pushed up against the fence. Id. at 1:30. Officers Deme and Okosun led Mr. Robertson
down the hallway without incident while one officer held Mr. Robertson's left elbow from behind.
Id. at 1:30–2:03. As Mr. Robertson approached the trash bag, he looked down and his leg gave out.
Id. at 1:58–2:04. He then fell towards the fence with his right knee landing on top of the trash bag.

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Id. at 2:04–2:10. Officers then helped him regain his balance. Id. at 2:10–2:14. Mr. Robertson was
then taken to the urgent care center for medical attention (Dkt. 37-1 at 20:1–25).
On June 29, 2021, Mr. Robertson was seen by Dr. Knieser, who evaluated him and found
tenderness in his right knee and moderate pain with motion (Dkt. 37-3 at 4).
II.

LEGAL STANDARD

A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). When reviewing a motion for summary judgment, the
Court views the record and draws all reasonable inferences from it in the light most favorable to
the nonmoving party. Khungar, 985 F.3d at 572–73. The Court cannot weigh evidence or make
credibility determinations on summary judgment because those tasks are left to the fact-finder.
Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). A court only must consider the materials
cited by the parties, see Fed. R. Civ. P. 56(c)(3); but it need not "scour the record" for evidence
that might be relevant. Grant v. Trs. of Ind. Univ., 870 F.3d 562, 572 (7th Cir. 2017).
A party seeking summary judgment must inform the district court of the basis for its motion
and identify the record evidence it contends demonstrates the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). Failure to properly support a fact in
opposition to a movant's factual assertion can result in the movant's fact being considered
undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

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III.

DISCUSSION

Mr. Robertson alleges the Defendants violated his Eighth Amendment rights by being
deliberately indifferent towards him and failing to provide non-hazardous conditions which
resulted in him being injured. (Dkt. 2 at 8). The summary judgment record contains video evidence
of the incident and Mr. Robertson does not dispute the authenticity of the video evidence (Dkt. 372). "[W]here a reliable videotape clearly captures an event in dispute and blatantly contradicts one
party's version of the event so that no reasonable jury could credit that party's story, a court should
not adopt that party's version of the facts for the purpose of ruling on a motion for summary
judgment." McCottrell v. White, 933 F.3d 651, 661 (7th Cir. 2019) (citing Scott v. Harris, 550 U.S.
372, 380–81 (2007)).
Under the Eighth Amendment, "prisoners cannot be confined in inhumane conditions."
Thomas v. Blackard, 2 F.4th 716, 720 (7th Cir. 2021) (citing Farmer v. Brennan, 511 U.S. 825, 832
(1994)). A conditions-of-confinement claim includes both an objective and subjective component.
Giles v. Godinez, 914 F.3d 1040, 1051 (7th Cir. 2019). Under the objective component, a prisoner
must show that the conditions were objectively serious and created "an excessive risk to [his]
health and safety." Id. (citations omitted). Under the subjective component, a prisoner must
establish that the defendants had a culpable state of mind—that they "were subjectively aware of
these conditions and refused to take steps to correct them, showing deliberate indifference."
Thomas, 2 F.4th at 720. Proving the subjective component is a "high hurdle" that "requires
something approaching a total unconcern for the prisoner's welfare in the face of serious risks."
Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020) (internal quotations
omitted). Neither "negligence [n]or even gross negligence is enough[.]" Lee v. Young, 533 F.3d
505, 509 (7th Cir. 2008).

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Defendants argue that the video evidence shows the conditions which led to Mr.
Robertson's fall do not rise to the level of an objectively serious harm and that they were not
deliberately indifferent towards such conditions (Dkt. 38 at 6–7). The Court agrees.
In Anderson v. Morrison, prison officials handcuffed the plaintiff, an inmate, behind his
back, ordered him to walk down stairs that were covered (and had been for several days) with food,
milk and other garbage, and refused his request to help him walk. 835 F.3d 681, 682 (7th Cir.
2016). The plaintiff then slipped and fell down a flight of thirteen stairs and was knocked
unconscious. Id. The Seventh Circuit found that "[f]orcing someone to walk handcuffed and
unaided down stairs needlessly strewn with easily removable milk, food, and garbage . . . poses an
unreasonable peril." Id. at 683.
In Pyles v. Fahim, the plaintiff filed a grievance complaining of slippery conditions near
the facility's showers. 771 F.3d 403, 405 (7th Cir. 2014). Then, five weeks later, the plaintiff fell
on the wet stairs when returning from the showers and suffered a loss of consciousness and
temporary paralysis from the waist down. Id. The plaintiff asserted a deliberate indifference claim
and the Seventh Circuit held that, "[t]he hazard about which Mr. Pyles complains is not sufficiently
serious to invoke the Eighth Amendment." Id. at 410. The Court reasoned that "[f]ederal courts
consistently have adopted the view that slippery surfaces and shower floors in prisons, without
more, cannot constitute a hazardous condition of confinement." Id.
In Bell v. Ward, the plaintiff "slipped on a wet floor in the common area of his cell block
and struck his chin on a steel stool, resulting in a gash that required four stitches." 88 Fed. Appx.
125, 126 (7th Cir. 2004). The plaintiff asserted an Eighth Amendment deliberate indifference claim
for failure to clean up water on the floor. Id. The Court held that such assertions "do not suggest a
substantial risk of serious harm that reflects the deliberate indifference required to impose liability

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under the Eighth Amendment." Id. at 127 (citing LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.
1993)) ("slippery prison floors . . . do not state even an arguable claim for cruel and unusual
punishment.").
The conditions within G Cell House that led to Mr. Robertson's slip and fall injury do not
rise to the level of a serious risk of harm. The video evidence shows that the range walkway
contained a few scattered pieces of trash, and one trash bag pushed up against the fence on the
range, leaving multiple feet for space to walk (Dkt. 37-2 at 0:00–1:30). Mr. Robertson's assertion
that "the small range walkway was cluttered with food trays, clothing, trash, water, and trash bags
blocking the walkway" is not supported by the video evidence (Dkt. 2 at 4). Mr. Robertson's claims
that he had to "walk through the obstacles, [and] on top of the obstacles" is also not supported by
the video evidence. Id. Further, the singular trash bag pushed up against the fence at the end of the
range does not rise to the "obstacle course" of milk, food, and rubbish in Anderson. 835 F.3d at
683.
In addition, the video evidence shows that the trash bag was not the cause of Mr.
Robertson's fall as his leg gave out just before making contact with the trash bag (Dkt. 37-2 at
2:00–2:06). Mr. Robertson also testified that his previous leg injury caused his leg to give out from
time to time (Dkt. 37-1 at 14:20–24, 15:11–12). The video evidence also shows that the trash bag
was pushed up against the fence leaving room for Mr. Robertson to walk, but rather than attempt
to avoid the trash bag, he walked directly into it (Dkt. 37-2 at 2:00–2:06). Mr. Robertson implicitly
admits in his Response that there was room to walk past the trash bag stating, "the fact is,
[Sergeant] Konkle is on the video walking right past the trash bag, towards Plaintiff as he is being
escorted by [Defendants]." (Dkt. 46 at 8). Such an admission contradicts Mr. Robertson's assertion
that there was nowhere to walk.

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In his Response, Mr. Robertson disputes Defendants' statements of the facts (Dkt. 46).
Specifically, he argues that his leg did not give out before the trash bag stating "when I looked at
[officer Deme, he said,] 'there[']s nowhere to go. Just step over.' And we both went to step over,
and again like I said, my leg gave out." Id. at 5. He also argues that "its undisputed that the ranges
were cluttered with hazards . . . [and] that several offenders were instructed to step on, or step over
obstacles blocking the range." Id. at 15. However, the video evidence does not comport with Mr.
Robertson's assertions.
Mr. Robertson disputes other facts in his response arguing that Defendants knew about his
knee injury but none of his disputes are material as the trash bag pushed up against the fence clearly
does not rise to the level of a substantial risk of serious harm. Giles, 914 F.3d at 1051 (explaining
that a conditions of confinement claim includes both an objective and subjective component).
Mr. Robertson cites Velez v. Johnson arguing that, "a defendant need not know the precise
nature of the risk to be found deliberately indifferent, as long as he knows that a serious risk exists."
(Dkt. 46 at 14–15);395 F.3d 732, 736 (7th Cir. 2005). First, Velez does not hold that the defendant
may assert a claim of deliberate indifference if they know of a serious risk. Rather, Velez states that
prison officials may not "put their heads in the sand" in light of being made aware of a serious risk
in some form. 395 F.3d at 736. There is no such ignorance present in this case.
Second, the facts of Velez are particularly horrid and nothing like the facts in this case. In
Velez, the plaintiff was put into a cell with another inmate who began acting "funny." Id. at 734.
After the plaintiff's transfer request was denied, the other inmate held a razor blade to the plaintiff's
throat before anally raping the plaintiff. Id. at 734–35. The plaintiff had notified the prison official
of a conflict with the inmate before the incident and then, on the night in question, the plaintiff
pushed the emergency call button multiple times and attempted to notify the prison officials in

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various other ways, but the prison official ignored all attempted emergency notifications. Id. at
736. For obvious reasons, the facts of this case are nowhere near Velez.
Lastly, the Court will address Mr. Robertson's assertion that, "taking the Plaintiff's evidence
and allegations as true; a reasonable jury could conclude that Defendants . . . have been deliberately
indifferent . . ." (Dkt. 46 at 21). Mr. Robertson misstates the legal standard at this stage of the
litigation. It is true that for the purposes of a motion to dismiss, the Court takes a plaintiff's
allegations as true. See Bielanski v. Cty. Of Kane, 550 F.3d 632, 633 (7th Cir. 2008). However, on
a motion for summary judgment, the Court views the evidence in the light most favorable to Mr.
Robertson as the non-movant but will not accept his allegations as true when the video evidence
clearly contradicts his allegations. McCottrell, 933 F.3d at 661.
The video evidence shows that the range was clear other than a few pieces of trash and a
trash bag pushed up against the security fence leaving room to walk. The video also shows that
Mr. Robertson's knee buckled before he made contact with the trash bag. But even if Mr. Robertson
had tripped on the trash bag, it would not rise to the level of a substantial risk of serious harm
which is required for an Eighth Amendment violation. There is no genuine issue of material fact
and Defendants' Motion for Summary Judgment is therefore granted.
IV.

CONCLUSION

For the reasons stated above, Defendants' Motion for Summary Judgment (Dkt. 36) is
GRANTED. Final Judgment consistent with this Order shall issue separately.
SO ORDERED.
Date:

3/11/2025

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Distribution:
HERBERT E. MR. ROBERTSON
885415
PLAINFIELD - CF
PLAINFIELD CORRECTIONAL FACILITY
Inmate Mail/Parcels
727 MOON ROAD
PLAINFIELD, IN 46168
Carlton Wayne Anker
Lewis and Wilkins LLP
[e-mail]
Jordan Douglas Hall
Lewis and Wilkins LLP
[e-mail]
Eric Ryan Shouse
Lewis And Wilkins LLP
[e-mail]

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