THOMAS v. FOSTER et al

Filing 56

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT - 48 Motion for Summary Judgment is GRANTED. Final judgment consistent with this Order and the screening Entry, dkt. 22 , shall now issue. See Order for details. Signed by Judge Tanya Walton Pratt on 7/5/2019 (copy mailed to plaintiff). (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
WAYMAN D. THOMAS, JR.,
Plaintiff,
v.
KEVIN SUTTLE, et al.
Defendants.

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No. 4:18-cv-00032-TWP-DML

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
AND DIRECTING ENTRY OF FINAL JUDGMENT
Plaintiff Wayman D. Thomas, Jr., an inmate at Tippecanoe County Jail in Lafayette,
Indiana, brought this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of his
Eighth and Fourteenth Amendment rights while he was an inmate at the Jackson County Jail in
Brownstown, Indiana. The defendants have moved for summary judgment. Mr. Thomas has not
responded and the time to do so has passed. The motion is now ripe for review. For the reasons
explained in this Order, the defendants are entitled to summary judgment on all of Mr. Thomas’s
claims.
I.
Summary Judgment 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). As the current version of Rule 56 makes clear,
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). A party can also support a fact by showing that the

materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is competent to testify on matters
stated. Fed. R. Civ. P. 56(c)(4). 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).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). “A
genuine dispute as to any material fact exists ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d 606, 609-10 (7th Cir.
2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896
(7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th
Cir. 2009). The Court views the record in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d
708, 717 (7th Cir. 2018). It 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). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and
the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not

required to “scour every inch of the record” for evidence that is potentially relevant to the summary
judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th
Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving
party. Anderson, 477 U.S. at 255.
II.
Factual Background
The consequence of Mr. Thomas’s failure to respond to the motion for summary judgment
is that he has conceded the defendant’s version of the facts. Smith v. Lamz, 321 F.3d 680, 683 (7th
Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated by the local rules results in an
admission.”); see S.D. Ind. Local Rule 56-1(b) (“A party opposing a summary judgment motion
must . . . file and serve a response brief and any evidence . . . that the party relies on to oppose the
motion. The response must . . . identif[y] the potentially determinative facts and factual disputes
that the party contends demonstrate a dispute of fact precluding summary judgment.”). This does
not alter the standard for assessing a Rule 56(a) motion, but does “reduc[e] the pool” from which
the facts and inferences relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419,
426 (7th Cir. 1997).
Some of the alleged incident was captured on video. The defendants have provided the
available video to the Court, and the Court has reviewed it. As the nonmoving party, Mr. Thomas
is entitled to all reasonable inferences in his favor drawn from the admissible evidence and
otherwise undisputed facts. See Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d
523, 526-27 (7th Cir. 2005). However, the Court must also “view[] the facts in the light depicted
by the videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007).

While being booked into the Jackson County Jail on May 9, 2017, Mr. Thomas acted
aggressively and erratically and refused to answer the questions asked of him by jail staff as a part
of the book-in process. Dkt. 50-2. He was placed into a padded cell near the booking area and
continued to act in an aggressive manner by yelling and kicking the cell door which was partially
unpadded. Sgt. Clark repeatedly ordered him to stop yelling and kicking because he was interfering
with the jail’s operations and was at risk of injuring himself. Mr. Thomas briefly stopped kicking
the door but continued to yell. Sgt. Clark ordered Mr. Thomas to lie down on the floor so he could
be placed in the restraint device. Mr. Thomas did not comply and instead removed the top portion
of his jumpsuit. Sgt. Ridlen, Sgt. Everhart, Sgt. Clark, Sgt. Drees and Jail Nurse Rutan then entered
the cell to place him in a restraint device by subduing Mr. Thomas and securing his arms and legs.
They then lifted Mr. Thomas off the ground and lowered him back down onto the lower portion
of the restraint device, turned him over to secure the upper portion of the restraint device, and sat
Mr. Thomas against a wall before leaving the cell.
Approximately forty-six minutes later, Sgt. Clark and Sgt. Ridlen entered the cell and
moved Mr. Thomas’s arms from the back of his body to the front. Approximately one hour and
twenty-four minutes later, Sgt. Clark and Nurse Rutan entered the cell and removed the restraint
device. Mr. Thomas told Sgt. Clark that his wrist had been injured in a fight with another inmate
in another jail the week prior. When Sgt. Clark asked about what looked like a sunburn on Mr.
Thomas’s chest, Mr. Thomas responded that he had been burned by Mexican criminals when he
refused to steal cars for them. Sgt. Clark then gave Mr. Thomas food and a drink.
On May 15, 2016, Mr. Thomas was moved from the cell in the jail holding area to a general
population pod where he had access to a shower. He was also provided with food and drink every
day of his incarceration at the Jackson County Jail.

III.
Discussion
The defendants recognize that Mr. Thomas was a pretrial detainee at the time of the
incident. Therefore, the claim of whether they subjected Mr. Thomas to cruel and unusual
punishment is analyzed under the Fourteenth Amendment. “[A] pretrial detainee can prevail by
providing objective evidence that the challenged governmental action is not rationally related to a
legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2475 (2015).
The defendants move for summary judgment arguing that they did not use excessive force
against Mr. Thomas. The evidence shows that the only force used against Mr. Thomas occurred in
the padded cell on video. The defendants Charles Murphy and Kevin Settle were not present during
the use of force in the padded cell. The defendants who were present used appropriate force to
restrain Mr. Thomas for the legitimate purpose of preventing him from disrupting the book-in area
of the jail. The force was not excessive and was not carried out in a malicious or sadistic manner.
There is no evidence that Mr. Thomas was injured in any way. Any injuries he had on May 9,
2017, he attributed to prior altercations with other civilians.
Mr. Thomas has failed to rebut the defendants’ evidence. Because there is no evidence that
any of the defendants beat or otherwise injured Mr. Thomas on May 9, 2017, these defendants are
entitled to summary judgment on Mr. Thomas’s claims that they exercised excessive force against
him.
The defendants have also presented evidence that Mr. Thomas was not denied food or drink
while he was housed in the Jackson County Jail. Dkt. 50-1. He had access to shower facilities after
being moved from the padded cell approximately one week after he was booked into the jail.
Dkt. 50-1. He has not rebutted this evidence. The video evidence demonstrates that he was given

a sandwich, soup, and a drink shortly after he was removed from the restraint device on May 9,
2017. From then on, he had regular access to food and drink. Such provisions are constitutionally
sufficient. Weekly access to showers is also constitutionally sufficient. See Henderson v. Lane,
979 F.2d 466, 469 (7th Cir. 1992). The defendants are therefore entitled to summary judgment on
the conditions of confinement claims.
Finally, the defendants argue that because Mr. Thomas was not injured by the use of force,
he had no serious medical condition requiring medical treatment. Furthermore, the video evidence
shows that the jail nurse was present as Mr. Thomas was removed from the restraint device. A few
moments later, when an officer returned to the padded cell to bring Mr. Thomas food and a drink,
Mr. Thomas asked to talk to the nurse and the officer bringing him food stated that the jail nurse
would be in to evaluate him after Mr. Thomas finished eating. Mr. Thomas has not rebutted
evidence that he did not have a serious medical condition and that he was seen by the jail nurse.
Furthermore, courts “will not find a jail official to have acted with deliberate indifference if []he
reasonably relied on the judgment of medical personnel.” Miranda v. County of Lake, 900 F.3d
335, 351 (7th Cir. 2018) (citations omitted). It is clear from the video evidence that the jail nurse
was present when Mr. Thomas was removed from the restraint device and that correctional staff
were deferring to the nurse’s professional evaluation of Mr. Thomas. The defendants are therefore
entitled to summary judgment on the deliberate indifference claims.
IV.
Conclusion
For the reasons stated in this Order, the defendant’s motion for summary judgment,
dkt. [48] is granted. Final judgment consistent with this Order and the screening Entry, dkt. 22,
shall now issue.

IT IS SO ORDERED.

Date: 7/5/2019

Distribution:
WAYMAN D. THOMAS, JR.
TIPPECANOE COUNTY JAIL
2640 Duncan Road
Lafayette, IN 47902
Corey J. Dunn
KIGHTLINGER & GRAY LLP
[e-mail]
R. Jeffrey Lowe
KIGHTLINGER & GRAY, LLP (New Albany)
[e-mail]