# McGuire - RESTRICTED - ACCEPT NO FILINGS v. Neal

> District Court, N.D. Indiana · August 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10159762

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** August 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10159762

## Opinion text

SOUTH BEND DIVISION
DUSTIN E. MCGUIRE,
Plaintiff,
v. CAUSE NO. 3:18-CV-197-DRL-MGG
JEREMY DYKSTRA et al.,
Defendants.
OPINION & ORDER
Dustin E. McGuire, a prisoner without a lawyer, was granted leave to proceed on an Eighth
Amendment claim against Captain Jeremy Dykstra, Officer Sara Abbassi, Officer Promise Blakely,
and Officer Justin Rodriguez in their individual capacities for denying necessary medical care
following Mr. McGuire’s inhalation of smoke while housed at the Indiana State Prison on April 7,
2017. Three defendants, Jeremy Dykstra, Officer Sara Abbassi, and Officer Justin Rodriguez, moved
for summary judgment.1 Mr. McGuire filed a response. No reply came. Because genuine triable

issues remain, the court denies the motion.
FACTS
Mr. McGuire is an inmate at Indiana State Prison with a documented history of asthma. ECF
119-1; ECF 116-3. On April 7, 2017, around 9:45 p.m., a fire began in Joshua Devine’s cell. ECF
116-1 at 1; ECF 116-2. Mr. Devine passed away due to the fire. ECF 116-2.
According to Captain Dykstra, who was monitoring the situation via camera, it “got so
smoky I couldn’t even tell who was on the ranges,” and the fire was “shooting out the cell, probably
like 5, 6 feet.” ECF 116-5 at 1-2. He compared what he saw to the movies, with the fire “coming
back out, like a fire-breathing dragon.” Id. at 2. “[Y]ou could not see nothing. And there was smoke.
The smoke was so thick and black, I couldn’t tell who was who.” Id.
Captain Dykstra ordered that the 500 block of the cell house evacuated, but the directive was
misunderstood. Instead, every cell in the cellhouse was unlocked. Id. at 3. This caused the
simultaneous release of more than 200 offenders. Id. at 5. According to Captain Dykstra, this created
a “[b]ad situation, that dark. The lighting -- you know, it’s that smoky. Level 4 offenders, you don’t
know what they’re going to do. Staff and offender safety. Bad situation.” Id. at 4. The offenders were
“loud; screaming, ‘smoke.’ You know, people want breathing treatments and everything else. Just

screaming like mad men.” Id. at 5.
Officer Statham was involved in extracting Mr. Devine from his cell. In Officer Statham’s
memorandum describing his role in the incident, he writes that, at approximately 10:00 p.m., he
“called a signal 3000 to insure that medical was on scene once we got the offender down the stairs
[but] it would not have been safe for medical to be on the range due to the danger of smoke
inhalation.” ECF 116-4 at 2.
Mr. McGuire was one of the inmates that sought medical care following the evacuation. He
asked Officers Abbassi, Blakely, and Rodriquez if they could call medical because he has asthma,
was having a difficult time breathing, and was dizzy. ECF 119-1 at 2. The officers responded by
telling him that Captain Dykstra had ordered them not to call medical for anyone and that no
offender was to go anywhere. Id. Mr. McGuire was gagging, coughing up black soot with blood in it,
and wheezing. Id. at 3. He showed the mucus with blood in it to the officers, but they expressed that
they could do nothing for him. Id.

Two officers were attacked during the chaos, and a third officer had to lock the door to
prevent the disturbance from spreading outside the cellhouse. ECF 116-4. Later, offenders started a
second fire and broke windows. ECF 116-1 at 1. It took time to restore order. After industrial fans
were used to clear some of the smoke from the cellhouse, “[o]ffenders were escorted in groups of 5
back into BCH until the unit was completely secured.” ECF 119-1 at 3; ECF 116-1 at 1. When it was
Mr. McGuire’s turn to re-enter the cellhouse, he told Captain Dykstra that he was wheezing, having
trouble breathing, coughing up black soot with blood in it, dizzy, and that he suffered from asthma.
ECF 119-1 at 4. Mr. McGuire indicated that he could not go back in when there was still smoke, and
he asked Captain Dykstra to call the medical department. Id. Captain Dykstra said that he was not
calling because he was securing offenders, and that Mr. McGuire would be fine. Id.
An emergency count was called at 12:52 a.m., and count was cleared at 1:43 a.m. ECF 116-1

at 1. “[M]ed lines” were formed by 4:45 a.m. ECF 116-2. The doors were left open and fans were
left on that night because of the smoke, but the cellhouse was still smoky. ECF 119-1 at 4. This
further aggravated Mr. McGuire’s symptoms. Id. Mr. McGuire had chest pain and vomiting, in
addition to the dizziness, coughing, and gagging he had already reported to the defendants. Id. He
had access to an inhaler for his asthma, but it didn’t help. Id. at 5. And, he tried to get the attention
of Officers Abbassi, Blakely, and Rodriguez, but they reportedly didn’t answer and didn’t walk the
range. Id.
Mr. McGuire wasn’t seen by medical personnel until April 13, 2017—six days later from
when the fire started. ECF 116-3 at 2, 4. Then, Mr. McGuire presented “no shortness of breath,”
and “no resp. distress” was noted. Id. Mr. McGuire’s medical notes don’t include any diagnosis of a
lung infection or use of any antibiotic. Id. However, they do say that, even six days after the fire,
wheezing could be heard in both his left and right lungs, and his throat was erythematous
(abnormally red). Id. at 2. His condition was treated with a breathing treatment and prednisone. Id. at

4.
STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The party seeking summary judgment “bears the initial responsibility
of informing the district court of the basis for its motion and identifying” the evidence that
“demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Substantive law determines which facts are material; that is, which facts might affect the
outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record” or “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
In ruling on a motion for summary judgment, the court must view all facts in the light most
favorable to the nonmoving party. Anderson, 477 U.S. at 255. The court will not “make credibility
determinations, weigh the evidence, or decide which inferences to draw from the facts; these are
jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Summary judgment is not a
substitute for a trial on the merits or a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead, the court’s sole task in ruling on a motion for
summary judgment is “to decide, based on the evidence of record, whether there is any material
dispute of fact that requires a trial.” Payne, 337 F.3d at 770. If a reasonable factfinder could find in
favor of the nonmoving party, summary judgment may not be granted. Id.
DISCUSSION
In medical cases, the Eighth Amendment test is expressed in terms of whether the defendant

was deliberately indifferent to the plaintiff’s serious medical need. Estelle v. Gamble, 429 U.S. 97
(1976). The defendants argue that summary judgment is appropriate both because Mr. McGuire did
not suffer from an objectively serious medical condition and because they were not deliberately
indifferent to that condition.
A medical need is “serious” if it is one that a physician has diagnosed as mandating
treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Here, the defendants argue that
Mr. McGuire’s medical condition was not serious while simultaneously submitting evidence that the
cell house was full of thick dark smoke, that flames were shooting out five or six feet from the cell
that was set on fire, and that medical staff were not called to the area right away because the smoke

was so dense it would have been dangerous for them to be there. Furthermore, Mr. McGuire, who
has asthma, reported symptoms that suggest he suffered from more than mere mild exposure to
smoke. And, when he did finally see a doctor, albeit six days later, his condition was still serious
enough that a breathing treatment was administered and prednisone was prescribed. There is a
genuine dispute of fact regarding whether Mr. McGuire was suffering from a serious medical
condition when he asked the defendants for medical care.
“[C]onduct is deliberately indifferent when the official has acted in an intentional or
criminally reckless manner, i.e., the defendant must have known that the plaintiff was at serious risk
of being harmed and decided not to do anything to prevent that harm from occurring even though
he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quotation marks,
brackets, and citation omitted). The defendants argue that they were not deliberately indifferent to
prioritize restoration of order following the deadly fire and the attack on staff that occurred when
200-plus offenders were evacuated simultaneously. Emergent conditions may well factor into

whether correctional officers were deliberately indifferent, cf. Whitley v. Albers, 475 U.S. 312, 320-21
(1986), but the evidence suggests that the immediate containment crisis (which accompanied the fire
and smoke) was resolved by at least 1:43 a.m., or within about four hours. Mr. McGuire says he
requested care both before and after order was restored. There is evidence before the court from
which a reasonable jury could conclude that Mr. McGuire’s medical care was not delayed only to
permit the restoration of order but was instead pushed aside altogether.
The defense argues that medical staff began examining affected offenders within hours of
the fire. ECF 114 at 7; ECF 115 at 4. The evidence establishes the creation of a “med line” at
around 4:45 a.m. ECF 116-2. The defendants offer no evidence regarding the purpose of the “med
line,” but Mr. McGuire says the “med line” was exactly what it sounds like—a line for offenders to

walk through and obtain their previously prescribed medications, not a means of obtaining
treatment for medical conditions related to the fire. The defendants presented no evidence to
explain this “med line” any differently in reply, or to show that Mr. McGuire received treatment he
needed over the course of six days. A reactionary dismissal of Mr. McGuire’s pleas for medical care,
in the literal heat of an evolving crisis, may not have been constitutionally indifferent, but the
defendants offer no explanation for that disregard for care once the crisis had passed, at least not on
this record. Accordingly, Mr. McGuire has established a triable issue on whether the defendants
were deliberately indifferent.
The defendants also assert that they are entitled to qualified immunity. “Qualified immunity
protects government officials from civil liability when performing discretionary functions so long as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001)
(internal quotation marks and citation omitted). To overcome a qualified immunity defense, a

plaintiff must show the deprivation of a constitutional right and must also “show that the right was
clearly established at the time of the violation.” Id. “A right is clearly established when existing
precedent has ‘placed the statutory or constitutional question beyond debate.’” Howell v. Smith, 853
F.3d 892, 897 (7th Cir. 2017) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The plaintiff
does not need to point to a case “on all fours” with the defendant’s alleged misconduct; rather, there
must simply be “settled authority that would cause [the defendant] to understand the illegality of the
action.” Id. (citations omitted). In some cases, the two inquiries effectively collapse into one:
A plaintiff claiming an Eighth Amendment violation must show the defendant’s
actual knowledge of the threat to the plaintiff’s health or safety, the defendant’s
failure to take reasonable measures, and the defendant’s subjective intent to harm or
deliberate indifference. If there are genuine issues of fact concerning those elements,
a defendant may not avoid trial on the grounds of qualified immunity. Likewise, if
the uncontested facts reveal a fatal gap in the plaintiff’s case, the defendant will win
on the merits.
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (internal citations omitted).
Here, genuine triable issues exist as to whether Mr. McGuire was suffering from a serious
medical condition and whether the defendants were deliberately indifferent to his need for medical
care. Crediting Mr. McGuire’s version of events, he has shown a plausible Eighth Amendment
violation, and “[t]he court cannot resolve disputed issues of fact when it addresses [whether the facts
alleged describe a violation of a protected right] because the ordinary rules governing summary
judgment apply in that situation.” Mordi v. Zeigler, 770 F.3d 1161, 1164 (7th Cir. 2014) (citations
omitted).
The defendants frame their qualified immunity argument in terms of the right to “immediate
medical treatment for smoke inhalation following a prison fire” and again suggest that Mr. McGuire
suffered only mild smoke inhalation. In other words, the defendants have, in construing the issue,
focused exclusively on their version of events. Genuine factual issues remain for a reasonable jury to
conclude otherwise. Thus, the defendants cannot avoid trial on grounds of qualified immunity. See
Walker, 293 F.3d at 1037.
CONCLUSION
For these reasons, the court DENIES the summary judgment motion (ECF 114).
SO ORDERED.
August 14, 2020 s/ Damon R. Leichty
Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10159762. Public record. Not legal advice.