GRIFFIN v. EVANS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

VIRGIL GRIFFIN, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-00882-JPH-MPB

)

C. EVANS, et al. )

)

Defendants. )

Order Granting in Part and Denying in Part

Defendants' Motions for Summary Judgment

Virgil Griffin, an inmate currently incarcerated at Pendleton Correctional

Facility ("PCF"), brought this civil rights action under 42 U.S.C. § 1983 alleging

that several individuals at PCF violated his constitutional rights. Specifically, Mr.

Griffin alleges that the defendants failed to protect him from an assault by

another inmate, were deliberately indifferent to his serious medical needs

following the assault, retaliated against him and were negligent. Defendants

claim they are entitled to summary judgment on all claims.

I. Summary Judgment Standard

A motion for summary judgment asks the Court to find that the movant is

entitled to judgment as a matter of law because there is no genuine dispute as

to any material fact. See Fed. R. Civ. P. 56(a). A party must support any asserted

undisputed (or disputed) fact by citing to specific portions of the record,

including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party

may also support a fact by showing that the materials cited by an adverse party

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).

In deciding a motion for summary judgment, the only disputed facts that

matter are material ones—those that might affect the outcome of the suit.

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)). 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. Ill. 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 factfinder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court

need only consider the cited materials and need not "scour the record" for

evidence that is potentially relevant to the summary judgment motion. Grant v.

Tr. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017) (quotation marks omitted);

see also Fed. R. Civ. P. 56(c)(3).

II. Statement of Facts

The following statement of facts has been evaluated pursuant to the

standard set forth above. The facts are considered undisputed except to the

extent that disputes of fact are noted.

A. Defendants

Some of the individual defendants are prison staff while others are medical

staff.

1. PCF Staff

Mr. Griffin asserts claims against the following staff members at PCF:

Chad Evans, Joseph McCutcheon, Jason Ernest, Jerry Holmes, and Matthew

Sarten. See dkt. 119. Mr. Griffin identifies Mr. Evans as a case work manager at

PCF who is responsible for administration of the rehabilitation plans and

classification-related matters. See dkt. 207-1 at 6. Mr. McCutcheon is identified

as a lieutenant at PCF. Dkt. 198-6 at ¶ 2. Mr. Ernest is identified as a lieutenant

at PCF who was responsible for the unit in which Mr. Griffin was incarcerated.

Id.; Griffin Dep. 76:23-77:5. Mr. Holmes and Mr. Sarten are both identified as

sergeants at PCF. Dkt. 207-1 at 6; dkt. 198-5 at ¶ 2.

2. Medical Staff

The following defendants are members of the medical staff at PCF: Dr. Paul

Talbot, Carrie Stephens, Brittany Moore-Groves, Meaka Walker, Dr. Ciemone

Easter-Rose, and Martin Perdue. See dkt. 207-1 at 7-8. Dr. Talbot is a physician

licensed to practice medicine in the state of Indiana, and he worked at PCF as a

physician during the times relevant to Mr. Griffin's complaint. Dkt. 196-6 at

¶¶ 1-2. Ms. Stephens is a registered nurse licensed to practice in the state of

Indiana. Dkt. 196-5 at ¶ 1. At the time of the incidents underlying Mr. Griffin's

claims, she worked as the Director of Nursing at PCF. Id. at ¶ 2. In that role, she

"supervised the provision of nursing services [at PCF], assisted the Health

Services Administrator as needed, responded to informal grievances and

requests submitted by patients to the health care unit, and addressed other

issues that patients may present at the health care unit." Id. at ¶ 3.

Brittany Moore-Groves worked as a registered nurse at PCF at all times

relevant to Mr. Griffin's claims. Dkt. 196-8 at ¶¶ 1-2. Meaka Walker worked as

a licensed practical nurse at PCF during the incidents underlying Mr. Griffin's

claims. Dkt. 198-7 at ¶¶ 1-2. In her role, Ms. Walker "administered medications

and interventions for offenders in accordance with physician instructions." Id. at

¶ 2. Although her responsibilities varied, she often was responsible for

distributing medication to inmates at PCF. Id. at ¶ 3.

Dr. Easter-Rose and Mr. Perdue were members of the mental health staff

at PCF. See dkt. 196-3 at ¶ 2; dkt. 196-4 at ¶ 2. Dr. Easter-Rose worked as a

psychologist at PCF at all times relevant to Mr. Griffin's complaint. Dkt. 196-3

at ¶¶ 1-2. Dr. Easter-Rose was part of the "multidisciplinary team directing and

supervising clinical programs" at PCF, but she did not have the authority to move

inmates to different units within PCF. Id. at ¶¶ 3, 9. During the incidents

underlying Mr. Griffin's claims, Mr. Perdue worked as a mental health

professional at PCF. Dkt. 196-4 at ¶¶ 1--2. Mr. Perdue was part of a

multidisciplinary team that provided clinical services to inmates at PCF. Id. Like

Dr. Easter-Rose, he did not have the authority to move inmates to different units

within PCF. Id. at ¶ 16.

B. Mr. Griffin and Mr. Eslick

Inmates incarcerated at PCF can be placed in a restrictive housing unit

("RHU") based on the threat their presence in general population poses to

themselves and others, the threat posed by the inmate on the security of the

facility, and the need to regulate the inmate's behavior. Dkt. 196-9 (hereinafter

"Griffin Dep.") at 29:22-301; see also dkt. 196-2 at 1. At the beginning of 2019,

both Mr. Griffin and Ryan Eslick, who later assaulted Mr. Griffin, were housed

in the RHU at PCF. Id. at 7:13-19; 30:5-8.

In February 2019, Mr. Eslick was housed in a more restrictive cell than

other inmates in the RHU. Mr. Eslick's cell had plexiglass covering the bars. Id.

at 92:4-20. He was housed in this type of cell because he had a history of

assaulting PCF staff and inmates. See dkt 207-12 at 32 (conduct report from

April 2016 stating that Mr. Eslick wielded an 8-inch piece of metal through the

cuff port on his cell door); id. at 35 (conduct report from September 2018

detailing Mr. Eslick's threats including a threat against Case Manager Evans);

id. at 38 (incident report from October 2018 stating that Mr. Eslick used a

shampoo bottle to squirt a mixture of urine and feces on a correctional officer);

id. at 46 (conduct report dated November 21, 2018, concerning Mr. Eslick

spraying another offender with an "unknown liquid substance" while in the

1 The evidence designated by the parties includes two complete copies of the transcript

from Mr. Griffin's deposition. See dkt. 196-9 and dkt. 198-1. For clarity and ease of

reference, the Court will cite to the copy submitted by defendants Easter-Rose, Moore-

Graves, Perdue, Stephens, Talbot, Walker, and Wexford of Indiana, LLC.

2 Mr. Griffin submitted the same declaration in support of his opposition to both motions

for summary judgment. See dkt. 207 and dkt. 210. The Court will cite to the first set of

documents submitted by Mr. Griffin for clarity and ease.

shower); id. at 36 (incident report from January 2019 describing incident where

Mr. Eslick spit on his suicide companion and threatened to spit on a correctional

officer).

C. Mr. Eslick Attacks Mr. Griffin

Inmates in the RHU shower separately in individual shower stalls with

solid locked doors. Griffin Dep. 36:1-37:6. The shower stalls have a cuff port

used to place handcuffs on an inmate. Id. at 37:13-20. On February 11, 2019,

at approximately 9:30 p.m., Sergeant Holmes was escorting Mr. Griffin back to

his cell after a shower. Dkt. 207-1 at 52-53; see also dkt. 198-2. When they

passed by the shower cell occupied by Mr. Eslick, Mr. Eslick thrust an object out

of the open cuff port and jabbed Mr. Griffin in the side. Dkt. 207-1 at 52.

Sergeant Holmes took Mr. Griffin for medical evaluation by a nurse. Id.

According to Mr. Griffin, Nurse Moore-Groves examined his injuries and

stated that she could not provide any medical treatment without orders from a

doctor. Dkt. 207 at 2. Although Nurse Moore-Groves does not recall having direct

contact with Mr. Griffin, she agrees that, as a nurse, she does not have "authority

to order specific treatment plans or provide prescription medication to offenders

without first consulting with a supervising physician and receiving orders." Dkt.

196-8 at ¶¶ 5, 7.

Mr. Griffin did not tell anyone about a specific threat made to him by

Mr. Eslick before the attack. Dkt. 196-9 at 31:5-11. He argues that he was not

obligated to have done so because Mr. Eslick "made no secret about who he was

or what he was [going to] do to anybody whether incarcerated or custody staff or

anybody else." Id. at 31:1-16.

Mr. Griffin submitted a Request for Interview to Case Manager Evans and

inquired whether Mr. Eslick was to be showered alone because he had previously

assaulted another inmate during showers.3 Dkt. 207-1 at 59. On February 19,

2019, Mr. Evans responded that Mr. Eslick would be "showering on his own

line." Id.

D. Medical Care After February 11, 2019, Incident

Dr. Talbot examined Mr. Griffin shortly before noon on February 12, 2019,

after a referral from PCF staff. Dkt. 196-1 at 42-45. He noted that Mr. Griffin

had "2 small areas 3 mm diameter about 1 inch apart in lower left abdominal

quadrant" and that there was "no visible sign of deep penetration beyond

superficial abdomi[]nal wall." Id. at 43. Dr. Talbot ordered a test of Mr. Griffin's

stool and a Hepatitis C and HIV screen for Mr. Griffin. Id. at 42. He also

prescribed an antibiotic and directed a check of the "tetanus protocol" to see if a

tetanus shot was "indicated." Id. In the order for the tetanus shot, Dr. Talbot

directed that it be completed "ASAP." Id. at 45. The medical record also reflects

that Dr. Talbot ordered a Hepatitis C and HIV screen for Mr. Eslick. Id.

Mr. Griffin was not taken to the medical unit for the treatment ordered by

Dr. Talbot. Dkt. 207-1 at 2; Griffin Dep. 81:24-85:10. Mr. Griffin contends that

Lt. McCutcheon knew that Dr. Talbot had ordered a tetanus shot but failed to

3 Although this Request for Interview is dated January 12, 2019, Mr. Griffin references

the February 11, 2019, incident where he was jabbed by Mr. Eslick during showers,

dkt. 207-1 at 59, so this document had to have been made after the attack.

ensure that Mr. Griffin got a shot, and that Sargent Sarten delayed his medical

treatment. Dkt. 198-1 at 23.. Dkt. 198-1 at 22.

Both Lieutenant McCutcheon and Sergeant Sarten claim that they did not

intend to interfere with Mr. Griffin's medical care, and they deny that their

actions or inactions interfered with Mr. Griffin's medical care. Dkt. 198-5 at ¶ 8;

dkt. 198-6 at ¶ 8.

A few days later, on February 15, 2019, Mr. Griffin submitted a Request

for Health Care ("RFHC") complaining that he had not received the medical

treatment ordered by Dr. Talbot. Dkt. 196-1 at 48. He reported that he had since

broken out in rashes, developed headaches and nausea, and vomited. Id. He also

stated that his injury had become infected. Id.

Nurse Moore-Groves examined Mr. Griffin during the early morning hours

of February 17, 2019, in response to his RFHC. Dkt. 196-1 at 39-42. She

observed "reddened scab-like lesions" on Mr. Griffin's inner and outer thighs and

next to his injury. Id. at 41. Mr. Griffin informed Nurse Moore-Groves that those

areas were "very itchy." Id.

During this examination, Nurse Moore-Groves verified that Mr. Griffin last

received a tetanus shot on March 3, 2009, and she administered a tetanus shot.

Id. at 40-41. Mr. Griffin alleges that, prior to administering the tetanus shot,

Nurse Moore-Groves stated that the shot would hurt and that it would not be

effective because it was being administered too late. Griffin Dep. 22:22-23:1. Mr.

Griffin experienced pain throughout his arm and the left side of his body after

receiving the tetanus shot. Dkt. 207 at 3. He later developed nausea, dizziness,

and vomiting. Id.

Although Nurse Moore-Groves states that she administered the shot

"based on Dr. Talbot's order," dkt 196-8 at ¶ 9, she does not explain the reason

for the delay between Dr. Talbot's order and administration of the tetanus shot.

Mr. Griffin has submitted documentation from his grievance related to not

receiving the tetanus shot, and Director of Nursing Carrie Stephens's response

to the grievance explained that the tetanus shot was not given to Mr. Griffin until

February 17, 2019, because that "was the first that nursing was made aware

that this individual needed a [tetanus] shot." Dkt. 207-1 at 68. Mr. Griffin alleges

that Nurse Moore-Groves stated that Nurse Walker was the individual who

instructed Nurse Moore-Groves to administer the shot. Griffin Dep. 23:20-24. It

is not clear how Nurse Walker became aware that a tetanus shot had been

ordered.

On February 19, 2019, Mr. Griffin met with Dr. Talbot for a chronic care

visit. Dkt. 196-1 at 35-38. Dr. Talbot noted that Mr. Griffin had dermatitis,

fungus, skin bacteria, and an inflammatory reaction. Id. at 35. He gave Mr.

Griffin several topical creams to treat these conditions. Id. Dr. Talbot also

documented that Mr. Griffin "smelled strongly of smoke and admitted to

smoking." Id. at 37. Mr. Griffin alleges that Dr. Talbot made accusations that

Mr. Griffin had been smoking after he complained about the medical treatment

he was receiving and about Ms. Stephens. Dkt. 207 at 4. Mr. Griffin further

states that Dr. Talbot "recruited" a correctional officer to shake down Mr. Griffin's

cell. Id.

The next day, Mr. Griffin submitted a RFHC stating that he was

experiencing a "painful sensation like nerve damage and a bone bruise." Dkt.

207-1 at 101. He requested medication to alleviate the pain. Id. Mr. Griffin met

with a nurse on February 27, 2019, in response to this RFHC. See dkt. 207-1 at

101; dkt. 196-1 at 30-32. The nurse instructed Mr. Griffin to use a warm

compress on the painful area and gave him Tylenol. Id. at 32. She also told him

to fill out another RFHC if the symptoms worsened. Id.

A month later, on March 27, 2019, Mr. Griffin filed another RFHC

complaining about the medical treatment he had received and stating that he

had been dealing with "physical and mental agony" due to not receiving the

screening for Hepatitis C ordered by Dr. Talbot. Dkt. 207-1 at 141. It appears

that mental health staff responded to this RFHC, but the response is illegible.

Id.

Mr. Griffin filed a third RFHC that was received on April 12, 2019. Dkt.

207-1 at 97. He stated that he was still experiencing tingling and numbness in

his arm. Id. He asked for treatment to address these symptoms. Id. Mr. Griffin

met with a nurse on April 17, 2019, in response to this RFHC. Dkt. 207-1 at 98-

100; dkt. 196-1 at 15-16. The nurse referred Mr. Griffin for an appointment with

Dr. Talbot. Dkt. 196-1 at 16. Dr. Talbot met with Mr. Griffin on April 23, 2019,

and ordered more Tylenol for Mr. Griffin's pain. Dkt. 196-1 at 12; see also dkt.

196-6 at ¶ 11.

Mr. Griffin filed two RFHCs in June 2019 seeking more pain medication

for the pain in his arm. Dkt. 207-1 at 105, 107. He received the requested pain

medication on both occasions. Id.

E. Designated Evidence Regarding the Tetanus Shot

Mr. Griffin's designated evidence includes information concerning the

BOOSTRIX vaccine "for active booster immunization against tetanus, diphtheria,

and pertussis" ("Tdap") and the Vaccine Information Statement for the tetanus

vaccine4 issued by the United States Department of Health and Human Services.

See dkt. 207-1 at 109-138. The information for the BOOSTRIX vaccine indicates

that the most common adverse reactions are pain, redness, and swelling at the

site of the injection and headache, fatigue, and gastrointestinal symptoms. Id. at

117. It describes tetanus—one of the conditions which the vaccine is to protect

against—as "a condition manifested primarily by neuromuscular dysfunction."

Id. at 125. It does not, however, state how quickly a Tdap vaccine booster must

be given after an incident or identify potential harmful effects of a delayed

administration of a tetanus vaccine.

The Vaccine Information Statement describes tetanus as a condition that

"causes painful stiffening of the muscles." Id. at 137. It also identifies pain,

redness, or swelling at the site of the injection and fever, headache, fatigue,

nausea, vomiting, diarrhea or stomachache as possible adverse effects of the

tetanus vaccine. Id. at 138. The Vaccine Information Statement does not state

4 The tetanus vaccine is often combined with the vaccine for diphtheria and pertussis.

Because Mr. Griffin focuses solely on tetanus and refers to the treatment ordered by Dr.

Talbot as a tetanus shot, see, e.g., dkt. 206 at 2, the Court does the same.

how quickly after an incident the vaccine must be administered to be effective

and minimize adverse effects or list potential harmful adverse effects of a delayed

administration of the vaccine.

Dr. Talbot has presented evidence, by affidavit, that a tetanus vaccine

"should be administered as soon as possible following a wound but should be

given even to patients who present late for medical attention." Dkt. 196-6 at ¶ 7.

He states that the incubation period for tetanus is "quite variable" and can be as

short as three days, up to 21 days. Id. According to Dr. Talbot, "[m]ost cases

occur within eight [] days." Id.

III. Discussion

Mr. Griffin's claims are related to the incident on February 11, 2019, and

the medical care he received thereafter. He alleges that:

• Prison staff members5 failed to protect him from being attacked by Mr.

Eslick;

• Prison and medical staff6 were deliberately indifferent to his serious

medical needs after the attack;

• Wexford of Indiana, LLC ("Wexford") has an unconstitutional policy or

practice of denying or delaying medical care to inmates to lower the cost

of medical treatment;

5 Mr. Evans, Lieutenant Ernest, Sergeant Holmes, Dr. Easter-Rose, and Mr. Perdue.

6 Lieutenant McCutcheon, Sergeant Sarten, Dr. Talbot, Nurse Moore-Groves, Nurse

Walker, and Ms. Stephens.

• A First Amendment retaliation claim that Dr. Talbot made accusations

that Mr. Griffin was smoking and recruited a correctional officer to shake

down Mr. Griffin's cell after he complained about his medical care; and

• All defendants were negligent.

A. Official Capacity Claims

An official capacity suit "generally represent[s] only another way of

pleading an action against an entity of which an officer is an agent." Monell v.

New York City Dep't of Social Services, 436 U.S. 658, 690 n.55 (1978); see also

Kentucky v. Graham, 473 U.S. 159, 165 (1985). Therefore, a suit against an

officer of a state agency in his official capacity is a suit against the state, and the

state is not a "person" subject to suit under 42 U.S.C. § 1983. Kolton v. Frerichs,

869 F.3d 532, 535 (7th Cir. 2017); Foreman v. Wadsworth, 844 F.3d 620, 624

n.1 (7th Cir. 2016) ("A state official in his or her official capacity is not deemed a

'person' under § 1983."). Consequently, Mr. Griffin cannot assert a claim for

monetary damages against the defendants in their official capacities.

Mr. Griffin can, however, assert a claim against the defendants in their

official capacities for prospective injunctive relief under Ex Parte Young, 209 U.S.

123 (1908). In his sixth amended complaint, Mr. Griffin asks for a "permanent

injunction ordering defendants to refrain from engaging in the acts and

omissions described herein." Dkt. 207-1 at 30. Thus, Mr. Griffin's claims against

the defendants in their official capacities can proceed insofar as Mr. Griffin seeks

injunctive relief. Defendants Mr. Evans, Lieutenant Ernest, Sergeant Holmes,

Lieutenant McCutcheon, and Sergeant Sarten therefore are not entitled to

summary judgment on Mr. Griffin's claims against them in their official

capacities.

B. Failure to Protect

The Eighth Amendment proscription of cruel and unusual punishment

"obligates prison officials to 'take reasonable measures to guarantee the safety

of . . . inmates.'" Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018) (quoting

Farmer v. Brennan, 511 U.S. 825, 832 (1994)). See also LaBrec v. Walker, 948

F.3d 836, 841 (7th Cir. 2020). An inmate "seeking to establish a violation of that

Eighth Amendment right must show that the prison official was deliberately

indifferent to an excessive risk to the [inmate's] health or safety, which includes

both an objective and subjective component." LaBrec, 948 F.3d at 841. The first

inquiry is whether the harm to which the inmate was exposed was "an objectively

serious one." Id. The second inquiry is whether the prison official had "actual,

not merely constructive, knowledge of the risk to be liable." Id. Specifically, the

prison official "must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw that

inference." Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (quoting

Farmer, 511 U.S. at 837).

"Whether a prison official had the requisite knowledge of a substantial risk

is a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence . . . and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that the risk was

obvious." Farmer, 511 U.S. at 842. "Because a prison official's duty under the

Eighth Amendment is to ensure 'reasonable safety,' prison officials who actually

knew of a substantial risk to inmate health or safety can nevertheless escape

liability if they responded reasonably to the risk, whether or not the harm was

ultimately averted." LaBrec, 948 F.3d at 841 (quoting Farmer, 511 U.S. at 844-

45).

1. Dr. Easter-Rose and Mr. Perdue

Mr. Griffin alleges that Dr. Easter-Rose and Mr. Perdue failed to protect

him because they did not notify prison officials of the threat of attack presented

by Mr. Eslick. Griffin Dep. 15:12-16:5, 17:3-13; see also dkt. 206 at 5-6.

Dr. Easter-Rose and Mr. Perdue argue that they are entitled to summary

judgment because (1) they were not aware of any threat to Mr. Griffin posed by

Mr. Eslick and (2) they did not have any authority to move inmates to different

units within PCF. See dkt. 195 at 22-25.

It is undisputed that prison officials knew that Mr. Eslick was dangerous

and presented a risk to staff and inmates. Indeed, his track record of threatening

and assaulting staff and other prisoners is why he was housed in a cell within

the RHU with plexiglass covering the bars. Mr. Griffin does not explain, however,

how additional reports to prison administrators from Dr. Easter-Rose or Mr.

Perdue concerning Mr. Eslick's behavior would have prevented the attack.

Moreover, there is no evidence that Dr. Easter-Rose or Mr. Perdue could have

intervened to prevent Mr. Eslick's attack. The designated evidence shows that

Dr. Easter-Rose and Mr. Perdue "did not have any authority to move [inmates]

to a different unit within [PCF]." Dkt. 196-3 at ¶ 9 (Dr. Easter-Rose affidavit);

dkt. 196-4 at ¶ 16 (Mr. Perdue affidavit). Additionally, inmates in the RHU are

escorted by a correctional officer—not mental health staff—whenever they are

outside of their cells. Griffin Dep. 9:22-25.

Mr. Griffin has not designated evidence from which a jury could find Dr.

Easter-Rose and Mr. Perdue liable under the Eighth Amendment for failure to

protect Mr. Griffin so they are entitled to summary judgment as to those claims.

2. Mr. Evans, Lieutenant Ernest, and Sergeant Holmes

Mr. Griffin contends that Mr. Evans and Lieutenant Ernest are liable for

failure to protect him because they did not order Mr. Eslick to shower at a

different time than everyone else or order that prison staff ensure that Mr.

Eslick's cuff port was closed while he was in the shower. Griffin Dep. 74:3-13,

76:23-77:5. Mr. Griffin further contends that Sergeant Holmes knew that Mr.

Eslick should be showered separately yet escorted Mr. Griffin in front of a shower

cell occupied by Mr. Eslick. Id. 78:1-6.

"To contest summary judgment, [Mr. Griffin must] produce sufficient

evidence for a rational jury to find that (1) [Mr. Eslick] presented an objectively

serious risk of harm, and (2) a defendant was deliberately indifferent to that risk,

meaning that he or she subjectively knew about the risk, and did not take

reasonable measures to abate it." Giles v. Tobeck, 895 F.3d 510, 513 (7th Cir.

2018). Mr. Evans, Lieutenant Ernest, and Sergeant Holmes argue that Mr. Griffin

cannot show that they each personally knew of a serious risk of harm to Mr.

Griffin or that they each personally failed to take reasonable measures to abate

the known risk.7 See dkt. 199 at 10-13. They further assert that they are entitled

to qualified immunity. Id. at 15-17.

Mr. Evans, Lieutenant Ernest, and Sergeant Holmes contend that they are

entitled to summary judgment because Mr. Griffin has not designated evidence

showing that he informed each of them personally of a threat against him from

Mr. Eslick. Dkt. 199 at 10-11. Mr. Griffin responds that he wasn't obligated to

give each of them an individual notification of the threat that Mr. Eslick posed

because Mr. Eslick "engaged in a routine pattern of assaults and threats", dkt.

209 at 8, and "made no secret about who he was or what he was [going to] do to

anybody whether incarcerated or custody staff or anybody else," Griffin Dep. at

31:1-16.

"[I]n order to establish a constitutional violation, it does not matter

'whether a prisoner faces an excessive risk of attack for reasons personal to him

or because all prisoners in his situation face such a risk.'" Pierson v. Hartley,

391 F.3d 898, 903 (7th Cir. 2004). Rather, "deliberate indifference can be

predicated upon knowledge of a victim's particular vulnerability (though the

identity of the ultimate assailant not known in advance of attack), or, in the

alternative, an assailant's predatory nature (though the identity of the ultimate

victim not known in advance of attack)." Brown v. Budz, 398 F.3d 904, 915 (7th

Cir. 2005). "Thus a deliberate indifference claim may be predicated on custodial

7 Mr. Evans, Lieutenant Ernest, and Sergeant Holmes do not contest that Mr. Eslick

posed an objectively serious risk of harm so the Court assumes for purposes of summary

judgment that Mr. Eslick's propensity for attacking inmates and PCF staff, see dkt. 207-

1 at 32-54 (various conduct and incident reports concerning Mr. Eslick), constituted an

objectively serious risk of harm.

officers' knowledge that a specific individual poses a heightened risk of assault

to even a large class of detainees—notwithstanding the officials' failure or

inability to comprehend in advance the particular identity of this individual's

ultimate victim." Id.

Mr. Griffin has designated evidence that Mr. Evans, Lieutenant Ernest,

and Sergeant Holmes knew of the serious risk of harm posed by Mr. Eslick. Mr.

Eslick was housed in a cell that had a layer of plexiglass covering the bars to

prevent him from reaching out of his cell or throwing things onto the range "due

to his history of assaulting staff and other offenders with bodily waste." Dkt. 199

at 3-4. Moreover, conduct and incident reports detail numerous attacks by Mr.

Eslick on PCF staff and other inmates. Dkt. 207-1 at 32-54. In the six months

before he attacked Mr. Griffin, Mr. Eslick was cited for threatening a PCF staff

member, spraying another offender with an unknown liquid substance while in

the shower, and spitting on a suicide companion and threatening to spit on a

PCF staff member. See id. And in April 2016, Mr. Eslick was disciplined for

wielding an 8-inch piece of metal through the cuff port on his cell door. Id. at 32.

Mr. Evans, Lieutenant Ernest, and Sergeant Holmes have not designated

evidence showing that they were unaware of the threat that Mr. Eslick presented

to PCF staff and inmates, his prior conduct or why he was placed in a more

restrictive cell covered with plexiglass. From the designated evidence, a jury

could find that Mr. Evans, Lieutenant Ernest, and Sergeant Holmes knew that

Mr. Eslick posed a heightened risk of assault to the individuals present in the

RHU. See Brown, 398 F.3d at 915.

Mr. Evans, Lieutenant Ernest, and Sergeant Holmes next assert that even

if they knew of the risk presented by Mr. Eslick, they are entitled to summary

judgment because they responded reasonably to that risk. Dkt. 199 at 11-13.

They rely on the fact that Mr. Eslick was housed in a cell covered with plexiglass

for 23 hours a day and that he showered in a single shower stall with a solid,

locked door. Id. Mr. Griffin contends that it was unreasonable for Mr. Eslick to

shower at the same time as other inmates in the RHU and for the cuff port on

his shower cell to be left open. Dkt. 209 at 8. He alleges that these facts "allowed

the assault . . . to happen." Id.

"A prison official must respond reasonably to a known risk of harm, but

negligence or even gross negligence is not enough to show a constitutional

violation. Instead the official's response must be so inadequate that it amounts

to a reckless disregard for the risk . . . and effectively condones the attack." Giles,

895 F.3d at 513 (internal quotation marks and citations omitted).

While the designated evidence shows that many appropriate steps were

taken to mitigate the risk that Mr. Eslick presented to other prisoners, he was

nonetheless able to attack Mr. Griffin because the cuff port to his shower stall

was open. See dkt. 199 at 4. Mr. Evans, Lieutenant Ernest, and Sergeant Holmes

do not designate evidence or present argument showing why Mr. Eslick's cuff

port was open at the time he assaulted Mr. Griffin despite his known history of

violence toward other inmates, including possessing and thrusting a sharp,

metal weapon through his cuff port. See dkt. 199 at 12. Nor do they designate

evidence or present argument showing why Mr. Eslick was allowed to shower at

the same time as other inmates despite his known of history of violence toward

other inmates, including attacking other inmates in the shower area. See 207-1

at 46.

Considering the designated evidence, a jury could conclude that Mr.

Evans, Lieutenant Ernest, and Sergeant Holmes recklessly disregarded the

threat presented by Mr. Eslick. Therefore, these individuals are not entitled to

summary judgment on the failure-to-protect claims.

Mr. Evans, Lieutenant Ernest, and Sergeant Holmes next contend that

they are entitled to qualified immunity. Dkt. 199 at 15-17. "Qualified immunity

attaches when an official's conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known." White

v. Pauly, 137 S. Ct. 548, 551 (2017) (citation and internal quotation marks

omitted). "[T]wo central questions must be addressed in the course of

determining whether qualified immunity is available: whether the plaintiff has

alleged a deprivation of a constitutional right at all, and whether the right at

issue was clearly established at the time and under the circumstances

presented." Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016). Because Mr.

Griffin has presented evidence to support a finding that his constitutional rights

were violated, the Court will focus on the second inquiry: whether the right at

issue was clearly established.

When a prison official has subjective knowledge of a risk of serious harm,

"it is clearly established that . . . the prison official [must] reasonably respond to

abate that risk of harm to the victim." Sinn, 911 F.3d at 422. If it is reasonable

to infer that a prison official had such knowledge but did not take adequate

responsive action, it is "well-settled, clearly established law that such a failure

constitutes deliberate indifference" and the prison official is not entitled to

qualified immunity. Id.

Here, a reasonable jury could find that Mr. Evans, Lieutenant Ernest, and

Sergeant Holmes had knowledge of a risk of serious harm to Mr. Griffin yet did

not take adequate action to abate that risk. While general protocols were in place

to mitigate the harm that Mr. Eslick presented to other prisoners, he was

nonetheless able to attack Mr. Griffin because he was permitted to be on the

shower range at the same time as Mr. Griffin and his cuff port was open.

Applying Sinn, these individuals are thus not entitled to qualified immunity

because their failure to act violated well-settled, clearly established law. See also

Gevas v. Laughlin, 798 F.3d 475, 484-85 (7th Cir. 2015) (rejecting qualified

immunity defense where the record before the court, "construed in the light most

favorable to the plaintiff," demonstrated that the plaintiff "was in danger of being

harmed [], and yet did nothing to address that danger other than having

previously made him aware that he had the option to refuse housing, be ticketed

in response, and have himself transferred into disciplinary segregation"). Mr.

Evans, Lieutenant Ernest, and Sergeant Holmes are therefore not entitled to

summary judgment based on the doctrine of qualified immunity.

C. Medical Care

The Eighth Amendment "protects prisoners from prison conditions that

cause the wanton and unnecessary infliction of pain." Pyles v. Fahim, 771 F.3d

403, 408 (7th Cir. 2014). "To determine if the Eighth Amendment has been

violated in the prison medical context, [the Court] performs a two-step analysis,

first examining whether a plaintiff suffered from an objectively serious medical

condition, and then determining whether the individual defendant was

deliberately indifferent to that condition." Petties v. Carter, 836 F.3d 722, 727-

28 (7th Cir. 2016) (en banc).

For the objective part of the analysis, the plaintiff must demonstrate that

his medical condition is "objectively, sufficiently serious." Farmer v. Brennan,

511 U.S. 825, 834 (1994). "An objectively serious medical need is 'one that has

been diagnosed by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor's

attention.'" King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (citing Zentmyer

v. Kendall Cnty., 220 F.3d 805, 810 (7th Cir. 2000)).

"A prison official is deliberately indifferent only if he 'knows of and

disregards an excessive risk to inmate health or safety.'" Whiting v. Wexford

Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (quoting Farmer, 511 U.S.

at 837). This is a subjective test: "[t]he defendant must know of facts from which

he could infer that a substantial risk of serious harm exists, and he must

actually draw the inference." Id.; Petties, 836 F.3d at 728.

1. Lieutenant McCutcheon and Sergeant Sarten

Mr. Griffin argues that Lieutenant McCutcheon and Sergeant Sarten

exhibited deliberate indifference in violation of the Eighth Amendment because

they knew that Mr. Griffin needed the treatment ordered by Dr. Talbot yet they

did not take him to get treated. See dkt. 209 at 13; dkt. 207-1 at 14-15; Griffin

Dep. 81:24-82:3, 85:8-86:5. Lieutenant McCutcheon and Sergeant Sarten claim

they are entitled to summary judgment because they relied on medical

professionals concerning Mr. Griffin's medical care. See dkt. 199 at 8-10.

"[A] non-medical prison official will generally be justified in believing that

the prisoner is in capable hands" when the prisoner is under the care of a medical

professional. See Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir. ), cert. denied,

140 S. Ct. 50 (2019), Here, Mr. Griffin claims that Lieutenant McCutcheon and

Sergeant Sarten were deliberately indifferent to his serious medical needs

because they ignored Dr. Talbot's directions and failed to do what Dr. Talbot

ordered. See id. 81:24-82:3, 85:11-87:4.

Lieutenant McCutcheon and Sergeant Sarten do not dispute that Dr.

Talbot ordered Mr. Griffin to receive the tetanus shot and additional testing or

that they did not take Mr. Griffin to the medical unit for the treatment and tests.

See dkt. 199 at 5. They have not designated evidence disputing Mr. Griffin's

statements that they knew of Dr. Talbot's orders; that Sergeant Sarten knew that

a tetanus shot should be administered within 24 hours; and that inmates in the

RHU must be escorted by a correctional officer whenever they are outside of their

cells. See Griffin Dep. 9:22-25, 38:21-39:2. Although Lieutenant McCutcheon

and Sergeant Sarten claim that they did not intend to interfere with Mr. Griffin's

medical treatment and that they did not interfere with his medical treatment,

see dkt. 198-5 at ¶ 8; dkt. 198-6 at ¶ 8, these statements must be evaluated in

the context of all the evidence. This necessarily involves making credibility

determinations, accepting some evidence while rejecting other evidence, and

ultimately determining what happened. These are functions reserved for a jury,

and a jury could conclude from the designated evidence that Lt. McCutcheon

and Sgt. Sarten were deliberately indifferent to Mr. Griffin's serious medical

needs. Lieutenant McCutcheon and Sergeant Sarten therefore are not entitled to

summary judgment on these claims.8

2. Dr. Talbot, Ms. Stephens, Nurse Moore-Groves, and Nurse

Walker

Mr. Griffin claims that medical staff were deliberately indifferent to his

serious medical needs following the attack on February 11, 2019, when:

• Nurse Moore-Groves failed to provide medical care on the night of the

incident;

• Dr. Talbot failed to ensure the treatment that he ordered was provided;

• Ms. Stephens failed to ensure that the treatment Dr. Talbot ordered was

rendered;

• Nurse Walker directed that Mr. Griffin be given a tetanus shot when she

knew it would be ineffective; and

• Nurse Moore-Groves administered the tetanus shot even though she knew

it would be painful. See dkt. 207-1 at 12-17.

8 In their reply, Lieutenant McCutcheon and Sergeant Sarten assert for the first time

that Mr. Griffin cannot show that he suffered any harm from not being taken to receive

the ordered medical treatment on February 12, 2019. See dkt. 212 at 6. Because

Lieutenant McCutcheon and Sergeant Sarten did not raise this argument until their

reply, it is waived. See Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 913 (7th

Cir. 2011) ("It is well established [] that skeletal arguments may be properly treated as

waived, as may arguments made for the first time in reply brief." (internal quotation

marks and citations omitted)).

A court should "look at the totality of an inmate's medical care when

considering whether that care evidences deliberate indifference to serious

medical needs." Petties, 836 F.3d at 728. One "type of evidence that can support

an inference of deliberate indifferent is an inexplicable delay in treatment which

serves no penological interest." Id. at 730. While "delays are common in the

prison setting with limited resources, [] whether the length of a delay is tolerable

depends on the seriousness of the condition and the ease of providing treatment."

Id. "To show that a delay in providing treatment is actionable under the Eighth

Amendment, a plaintiff must also provide independent evidence that the delay

exacerbated the injury or unnecessarily prolonged pain." Id. at 730-31.

Nurse Moore-Groves is entitled to summary judgment on Mr. Griffin's

claim that she failed to provide medical treatment on the night of February 11,

2019. Mr. Griffin has not shown that he was harmed by the delay between when

he met with Nurse Moore-Groves on the evening of February 11, 2019, and when

he met with Dr. Talbot in the late morning on February 12, 2019. Without

evidence of injury caused by the delay, a jury could not find for Mr. Griffin on an

Eighth Amendment claim. See Lord v. Beahm, 952 F.3d 902, 904 (7th Cir. 2020)

("To establish an entitlement to damages for [an Eighth Amendment violation],

the prisoner must provide evidence that he presented an objectively serious

medical need that a defendant [] responded to with deliberate indifference,

thereby resulting in some injury.").

Mr. Griffin has designated evidence from which a jury could find that Ms.

Stephens, Nurse Walker, and Nurse Moore-Groves were deliberately indifferent

with respect to the treatment ordered by Dr. Talbot. They do not dispute that

Mr. Griffin did not receive the tetanus shot ordered by Dr. Talbot until almost

five days after it was ordered, see dkt. 195 at 8-9, and they do not provide an

explanation for the delay. Mr. Griffin has presented evidence that the delay was

caused by nursing staff not being made aware of the order, see dkt. 207-1 at 68,

and there is no explanation for that lapse in communication. Similarly, Mr.

Griffin has designated evidence that he did not receive the Hepatitis C and HIV

screening for at least six weeks after they were ordered. See dkt. 207-1 at 141.

Although Ms. Stephens contends that she does not recall having face-to-

face contact with Mr. Griffin in February 2019, she admits that she had "the

authority to take steps to ensure that Mr. Griffin received the appropriate

nursing services . . . in order to ensure that he had access to medical care." Dkt.

195 at 25-26. Based on this evidence, a reasonable jury could conclude that it

was Ms. Stephens's responsibility to make sure that Mr. Griffin received the

medical treatment ordered by Dr. Talbot and that her failure to do so constitutes

deliberate indifference.

Similarly, Nurse Walker argues that she is entitled to summary judgment

because she does not recall interacting with Mr. Griffin in February 2019. See

dkt. 195 at 29; dkt. 196-7 at ¶¶ 7-8. Mr. Griffin has submitted evidence that

Nurse Walker directed Nurse Moore-Groves to give Mr. Griffin the tetanus shot,

and that Nurse Walker knew the tetanus shot would be ineffective given the delay

between the incident and its administration. Griffin Dep. 23:20-24:11. This

evidence is sufficient to establish a material factual dispute as to Nurse Walker's

involvement in, and responsibility for, the delayed tetanus shot.

Mr. Griffin has also designated evidence to show that he was harmed by

the alleged delay in providing the medical treatment ordered by Dr. Talbot. Mr.

Griffin has presented evidence that he developed a rash and experienced

headaches, vomiting, and nausea between the February 11, 2019, incident and

administration of the tetanus shot. See dkt. 196-1 at 48. He also testified at his

deposition that Nurse Moore-Groves told him he would experience pain as a

result of the delayed administration of the tetanus shot, Griffin Dep. 22:22-23:1,

and it is undisputed that he received treatment for pain following administration

of the shot, dkt. 196-1 at 12, 15-16, 30-32; dkt. 207-1 at 97-101, 105, 107, 141.

Dr. Talbot is also entitled to summary judgment on Mr. Griffin's claims

that he exhibited deliberate indifference by failing to ensure that the treatment

he ordered was rendered. The record demonstrates that Dr. Talbot examined

Mr. Griffin after the attack and ordered a series of tests to determine if Mr. Griffin

required further treatment. Dkt. 196-1 at 42-45; see also dkt. 196-6 at ¶¶ 4-5.

While Mr. Griffin alleges that Dr. Talbot had "an obligation to guarantee timely

medical treatment once prescribed," he does not cite authority in support of this

assertion. Dkt. 206 at 10. And regardless, he has not designated evidence

showing that Dr. Talbot knew of a substantial risk that the prescribed treatment

would not be provided and nonetheless chose to ignore that risk.

Nurse Moore-Groves is entitled to summary judgment on Mr. Griffin's

Eighth Amendment claim related to the failure to provide treatment on the night

of the incident. Dr. Talbot is entitled to judgment as a matter of law on Mr.

Griffin's claim that Dr. Talbot violated the Eighth Amendment by failing to ensure

the medical treatment he prescribed was provided. Ms. Stephens, Nurse Walker

and Nurse Moore-Groves, however, are not entitled to summary judgment on Mr.

Griffin's Eighth Amendment claims related to the delay in receiving the medical

treatment ordered by Dr. Talbot on February 12, 2019.

D. Monell Claim

Mr. Griffin contends that defendant Wexford Health ("Wexford"), has a

policy, practice, or custom of denying, delaying, and interfering with the medical

treatment of inmates at PCF for the "purpose of preserving the cost of treating"

inmates. Dkt. 207-1 at 18-19. Wexford seeks summary judgment on this claim,

arguing that Mr. Griffin cannot show that Wexford maintained an

unconstitutional policy or practice. Dkt. 195 at 31-32.

Wexford is "treated the same as a municipality for liability purposes under

§ 1983." Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir. 2010). Thus, to hold a

private corporation liable under § 1983, a plaintiff must establish that the alleged

"constitutional violation was caused by an unconstitutional policy or custom of

the corporation itself." Shields v. Ill. Dep't of Corr., 746 F.3d 782, 789 (7th Cir.

2014). If a plaintiff provides "no evidence of an unconstitutional policy or custom

of Wexford itself, [] precedents doom his claim against the corporation." Id.

Mr. Griffin has not designated evidence showing that Wexford has a

practice of denying, delaying, or interfering with the medical care of inmates to

save costs. Although "there is no clear consensus as to how frequently such

conduct must occur to impose [] liability," the Seventh Circuit has established

that "it must be more than one instance . . . or even three." Thomas v. Cook Cnty.

Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010) (internal quotation marks and

citations omitted). A plaintiff "must demonstrate that the practice is widespread

and that the specific violations complained of were not isolated incidents." Gill v.

City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). Mr. Griffin's allegations of

a practice based on his own two experiences and one experience of another

inmate, see dkt. 206 at 15; dkt. 207-1 at 75, are insufficient to demonstrate a

widespread practice rather than isolated incidents.

Additionally, Mr. Griffin asserts that Wexford maintains an

unconstitutional policy because Nurse Moore-Groves told him that she could not

administer medical care without a doctor's orders when she examined him on

the night of February 11, 2019. Dkt 207-1 at 12; see also Griffin Dep. 35:14-18.

In her affidavit, Nurse Moore-Groves avers that she does not "have authority to

order specific treatment plans or provide prescription medication to offenders

without first consulting with a supervising physician and receiving orders." Dkt.

196-8 at ¶ 5.

Mr. Griffin has not presented evidence to establish that the alleged policy

of not allowing a nurse to provide treatment without a physician's orders is

categorically unconstitutional. It is undisputed that Nurse Moore-Groves served

as a registered nurse at PCF on February 11, 2019, dkt. 196-8 at ¶¶ 1-2, and

Article 23 of Title 25 of the Indiana Code outlines the responsibilities of registered

nurses, see Ind. Code § 25-23-1-1.1, et seq. The definition of "registered nursing"

includes "executing regimens delegated by a physician with an unlimited license

to practice medicine . . . ." Ind. Code § 25-23-1-1.1(b)(5). Thus, there is no

evidence that Wexford's policy runs afoul of what Indiana law requires.

"[E]nforcement of a state law does not constitute an actionable official policy."

Vasquez v. Foxx, 895 F.3d 515, 519 (7th Cir. 2018).

Wexford is entitled to summary judgment on this claim.

E. Retaliation

Mr. Griffin asserts a First Amendment retaliation claim against Dr. Talbot.

He alleges that Dr. Talbot accused Mr. Griffin of smoking and "recruited" a

correctional officer to shake down Mr. Griffin's cell after he complained about his

medical treatment. See dkt. 207 at 4; dkt. 207-1 at 23-24. Dr. Talbot seeks

summary judgment on this claim. Dkt. 195 at 32-33.

To prevail on a First Amendment retaliation claim, Mr. Griffin must show

that "(1) []he engaged in activity protected by the First Amendment; (2) []he

suffered a deprivation that would likely deter First Amendment activity; and (3)

the protected activity []he engaged in was at least a motivating factor for the

retaliatory action." Archer v. Chisholm, 870 F.3d 603, 618 (7th Cir. 2017).

Mr. Griffin has submitted sufficient evidence on summary judgment to

show that he engaged in activity protected by the First Amendment. Specifically,

he states that Dr. Talbot made accusations of smoking and ordered a shake

down of Mr. Griffin's cell after Mr. Griffin complained about his medical

treatment. Dkt. 207 at 4; dkt. 207-1 at 23-24. Oral complaints about prison staff

are protected under the First Amendment. See Caffey v. Maue, 679 F. App'x 48,

490 (7th Cir. 2017).

He has not, however, established that he suffered a deprivation that would

likely deter First Amendment activity. "[T]he test for determining whether prison

staff violated a prisoner's First Amendment right . . . is objective: would the

response of prison staff to the prisoner's [protected activity] deter a prisoner of

'ordinary firmness' from seeking redress?" Pannell v. Eads, No. 20-1313, 2021

WL 3634921, *2 (7th Cir. Aug. 17, 2021) (quoting Douglas v. Reeves, 964 F.3d

643, 646 (7th Cir. 2020)).

"Whether retaliatory conduct is sufficiently severe to deter is generally a

question of fact, but when the asserted injury is truly minimal, [the court] can

resolve the issue as a matter of law." Douglas, 964 F3d at 647. Here, there is no

evidence that the shake down of a cell would deter an inmate of ordinary firmness

from engaging in activity protected by the First Amendment. The Supreme Court

has recognized that prison officials may search prison cells at any time and "that

prisoners have no legitimate expectation of privacy" in their cells. See Hudson v.

Palmer, 468 U.S. 517, 529-530 (1984) ("[W]holly random searches are essential

to the effective security of penal institutions."). Because prison officials can

search an inmate's cell at any time, such searches are not likely to deter inmates

from exercising their First Amendment rights. Dr. Talbot is entitled to judgment

as a matter of law on Mr. Griffin's First Amendment retaliation claim.

F. Negligence

Mr. Griffin alleges that the defendants were negligent on February 11,

2019, and during the medical treatment he received afterwards. Dkt. 207-1 at

28-29. "A plaintiff seeking damages for negligence must establish (1) a duty owed

to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury

proximately caused by the breach of duty." Pfenning v. Lineman, 947 N.E.2d 392,

398 (Ind. 2011).

"Ordinarily, summary judgment is inappropriate in negligence cases."

Kennedy v. Guess, Inc., 806 N.E.2d 776, 783 (Ind. 2004). Although questions of

law such as whether a defendant had a duty of care may be appropriate for

summary judgment, "[i]ssues of negligence, contributory negligence, causation,

and reasonable care are more appropriately left for the determination of a trier

of fact." Kader v. State of Indiana, 1 N.E.3d 717, 726 (Ind. Ct. App. 2013)

(quotation marks and citation omitted). Here, the issues disputed by the parties

are those Indiana courts have recognized are inappropriate for summary

judgment. See dkt. 195 at 33-36; dkt. 199 at 14-15. Thus, the Court will leave

those issues to be resolved by the trier of fact.9

However, the Court will not exercise supplemental jurisdiction over all of

Mr. Griffin's state law negligence claims. The Seventh Circuit has made clear

9 Defendants Lieutenant Ernest, Mr. Evans, Sergeant Holmes, Lieutenant McCutcheon,

and Sergeant Sarten take issue with Mr. Griffin's failure to specifically address their

arguments concerning the negligence claims in his response. See dkt. 212 at 7.

Although Mr. Griffin did not specifically address his negligence claims in his response,

the evidence he submitted in support of his Eighth Amendment claims is sufficient to

support his negligence claims.

that "the usual practice is to dismiss without prejudice state supplemental

claims whenever all federal claims have been dismissed prior to trial." Groce v.

Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999); see also Sharp Electronics v. Met. Life

Ins., 578 F.3d 505, 514 (7th Cir. 2009) ("Normally, when all federal claims are

dismissed before trial, the district court should relinquish jurisdiction over

pendent state-law claims rather than resolving them on the merits.").

As explained above, Dr. Easter-Rose, Mr. Perdue, Dr. Talbot, and Wexford

are entitled to summary judgment on all federal claims asserted against them.

The Court finds no reason to deviate from the usual practice that any

supplemental claims against these defendants should be dismissed without

prejudice. Thus, the Court exercises its discretion to relinquish supplemental

jurisdiction over the state law negligence claims against Dr. Easter-Rose, Mr.

Perdue, Dr. Talbot, and Wexford.

IV. Conclusion

The motion for summary judgment filed by defendants Dr. Easter-Rose,

Nurse Moore-Groves, Mr. Perdue, Ms. Stephens, Dr. Talbot, Nurse Walker, and

Wexford, dkt. [194], is granted in part and denied in part. It is granted with

respect to Mr. Griffin's failure to protect claims against Dr. Easter-Rose and Mr.

Perdue, his policy claim against Wexford, his Eighth Amendment deliberate

indifference claim against Dr. Talbot, his Eighth Amendment deliberate

indifference claim related to Nurse Moore-Groves's alleged failure to provide

medical care on the evening of February, 11, 2019, and his First Amendment

retaliation claim against Dr. Talbot. These claims are dismissed with prejudice.

The summary judgment motion is denied as to Mr. Griffin's Eighth

Amendment deliberate indifference claims against Ms. Stephens, Nurse Walker,

and Nurse Moore-Groves related to the delay in receiving the medical treatment

ordered by Dr. Talbot on February 12, 2019, and his negligence claims against

Ms. Stephens, Nurse Walker, and Nurse Moore-Groves.

The motion for summary judgment filed by defendants Lieutenant Ernest,

Mr. Evans, Sergeant Holmes, Lieutenant McCutcheon, and Sergeant Sarten, dkt.

[198], is denied.

The Court exercises its discretion to relinquish supplemental jurisdiction

over the state law negligence claims against Dr. Easter-Rose, Mr. Perdue, Dr.

Talbot, and Wexford as all federal claims against those defendants have been

resolved via the motions for summary judgment. Those claims are dismissed

without prejudice.

The clerk is directed to update the docket to reflect the correct spelling

of defendant Moore-Groves's name.

The clerk is further directed to terminate Dr. Easter-Rose, Mr. Perdue,

Dr. Talbot, and Wexford as defendants on the docket.

SO ORDERED.

Date: 9/2/2021

James Patrick Hanlon

United States District Judge

Southern District of Indiana

34

Distribution:

VIRGIL GRIFFIN

998996

PENDLETON – CF

PENDLETON CORRECTIONAL FACILITY

Inmate Mail/Parcels

4490 West Reformatory Road

PENDLETON, IN 46064

Douglass R. Bitner

KATZ KORIN CUNNINGHAM, P.C.

dbitner@kkclegal.com

Bryan Findley

INDIANA ATTORNEY GENERAL

bryan.findley@atg.in.gov

Rachel D. Johnson

KATZ KORIN CUNNINGHAM, P.C.

rjohnson@kkclegal.com

Sarah Jean Shores

INDIANA OFFICE OF THE ATTORNEY GENERAL

sarah.shores@atg.in.gov