# MERCADO v. COLUMBUS REGIONAL HOSPITAL

> District Court, S.D. Indiana · November 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10169758

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** November 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ANGELITO C. MERCADO, )
)
Plaintiff, )
)
v. ) No. 1:21-cv-00429-JMS-MJD
)
COLUMBUS REGIONAL HOSPITAL, )
DR. SAMUEL LOCOH-DONOU, )
EMERGENCY PHYSICIANS OF INDIANA, INC., )
R.N. SHELBY FLUHR, and )
R.N. KRISTA BERRY, )
)
Defendants. )

ORDER

On July 15, 2020, pro se Plaintiff Angelito Mercado was arrested and, while in custody,
taken to Columbus Regional Hospital ("the Hospital") for medical care. He filed this lawsuit
against the Hospital, Dr. Samuel Locoh-Donou, Emergency Physicians of Indiana, Inc. ("EPI"),
Nurse Shelby Fluhr, and Nurse Krista Berry, alleging that Defendants violated his constitutional
rights and Indiana law by forcibly sedating him, administering a Covid-19 test against his will,
and failing to examine or treat him after being informed that he may have swallowed narcotics.
[Filing No. 15.] Defendants have filed a Motion for Summary Judgment, [Filing No. 33], which
is ripe for the Court's review.
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). 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. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). "'Summary
judgment is not a time to be coy.'" King v. Ford Motor Co., 872 F.3d 833, 840 (7th Cir. 2017)
(quoting Sommerfield v. City of Chicago, 863 F.3d 645, 649 (7th Cir. 2017)). Rather, at the
summary judgment stage, "[t]he parties are required to put their evidentiary cards on the table."

Sommerfield, 863 F.3d at 649.
The moving party is entitled to summary judgment if no reasonable factfinder 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. Darst v. Interstate Brands Corp., 512 F.3d 903, 907
(7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the factfinder. O'Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011).
Each fact asserted in support of or in opposition to a motion for summary judgment must
be supported by "a citation to a discovery response, a deposition, an affidavit, or other admissible

evidence." S.D. Ind. L.R. 56-1(e). And each "citation must refer to a page or paragraph number
or otherwise similarly specify where the relevant information can be found in the supporting
evidence." Id. The Court need only consider the cited materials and need not "scour the record"
for evidence that is potentially relevant. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 572-73
(7th Cir. 2017) (quotations omitted); see also Fed. R. Civ. P. 56(c)(3); S.D. Ind. L.R. 56-1(h).
Where a party fails to properly support an assertion of fact or fails to properly address another
party's assertion of fact, the Court may consider the fact undisputed for purposes of the summary
judgment motion. Fed. R. Civ. P. 56(e)(2).
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. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009).
In other words, while there may be facts that are in dispute, summary judgment is appropriate if

those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th
Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
II.
STATEMENT OF FACTS

As an initial matter, the Court notes that Mr. Mercado provided video evidence in
response to Defendants' Motion for Summary Judgment. [See Filing No. 42.] This evidence
consists of 13 separate videos captured by body cameras worn by law enforcement officers or
cameras located in or on law enforcement vehicles. Because the claims at issue in this lawsuit
only concern Mr. Mercado's medical treatment at the Hospital, much of the video evidence—
including, for example, several hours of video showing officers' activities at the scene of the
traffic stop after Mr. Mercado had already been transported to the Hospital—is irrelevant. To the
extent the video evidence is relevant to this case, it is consistent with the affidavits submitted by
Defendants and with the police reports submitted by Mr. Mercado, on which the Court primarily
relies in setting forth the undisputed facts. Furthermore, to the extent that Mr. Mercado's version
of events is blatantly contradicted by the video evidence, the Court may rely on the video
evidence and disregard his version of events. See Williams v. Brooks, 809 F.3d 936, 942 (7th
Cir. 2016) ("When the evidence includes a videotape of the relevant events, the Court should not
adopt the nonmoving party's version of the events when that version is blatantly contradicted by
the videotape.").
In addition, Mr. Mercado failed to follow Local Rule 56, which requires a non-movant to
include in his response to a motion for summary judgment a section labeled "Statement of
Material Facts in Dispute" identifying potentially determinative facts and factual disputes, and
dictates that a party support each asserted fact with a citation to admissible evidence. See S.D.

Ind. L.R 56-1(b), (e). As a result, the Court may accept each of the properly asserted facts in
Defendants' Motion for Summary Judgment as undisputed. Nevertheless, in light of Mr.
Mercado's pro se status, the Court has reviewed all of the evidence he submitted to identify any
disputes of material fact.
With these caveats in mind, the following factual background is set forth pursuant to the
standard detailed above. The facts stated are not necessarily objectively true, but as the summary
judgment standard requires, the undisputed facts and the disputed evidence are presented in the
light most favorable to "the party against whom the motion under consideration is made,"
Premcor USA, Inc. v. Am. Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005), except to
the extent that Mr. Mercado's version of events is contradicted by video evidence, see Williams,

809 F.3d at 942.
A. The Traffic Stop and Arrest
On July 15, 2020, Officer Drake Maddix of the Columbus Police Department ("CPD")
and Deputy Dylan Prather of the Bartholomew County Sheriff's Office conducted a traffic stop
of a vehicle driven by Mr. Mercado. [Filing No. 40-2 at 9; Filing No. 40-2 at 12.] Mr. Mercado
refused to comply with the officers' orders to exit the vehicle and to drop the items he was
holding in his hands, so the officers placed him in hand restraints. [Filing No. 40-2 at 12.]
When he was told that he would be going to jail, Mr. Mercado fell to the ground and stated that
he was having a panic attack. [Filing No. 40-2 at 12; see also 1902 Bodycam1 at 04:20-05:00.]
He also complained of back pain and stated that he had Covid-19. [Filing No. 40-2 at 12; see
also 1902 Bodycam at 04:20-04:24 (Mr. Mercado stating, "Dude, I got corona, man!").] As a
result, the officers immediately called for an ambulance. [Filing No. 40-2 at 12; 1902 Bodycam

at 04:20-05:00.] Mr. Mercado was yelling, "making unreasonable noises," and "drawing a crowd
due to his conduct," [Filing No. 40-2 at 12], and he refused to cooperate with the officers or
emergency medical personnel, [Filing No. 40-2 at 9]. He also complained of a back injury he
sustained during a recent car accident. [See 1910 Bodycam2 at 07:40-09:10.]
CPD Officer Brandon Decker accompanied Mr. Mercado in the ambulance during
transport. [Filing No. 40-2 at 9.] Mr. Mercado was restrained in the ambulance due to his erratic
behavior. [Filing No. 40-2 at 9-10.] He was yelling, struggling against his restraints, spitting,
and complaining of muscle spasms in his back. [1910 Bodycam at 10:15-24:00.] While in the
ambulance, Mr. Mercado repeatedly hit and rubbed his face against the hard plastic rail on the
side of the stretcher, which eventually caused his nose to bleed. [Filing No. 40-2 at 9-10.] He

also was repeatedly "digging at his buttocks and crotch area." [Filing No. 40-2 at 10.] Mr.
Mercado threatened to kill himself and stated again that he had Covid-19. [Filing No. 40-2 at 10;
see also 1910 Bodycam at 14:05-14:15; 23:50-24:10.]

1 The Court uses "1902 Bodycam" to refer to the video titled "AXON_Body_2_Video_2020-07-
15_1902" on the flash drive submitted by Mr. Mercado. This video has the identifier
"X81171483" in the upper right corner. Neither party clearly delineates for the Court the source
of each video, but based on context clues, the Court surmises that this video was captured by
Officer Maddix's body camera.

2 The Court uses "1910 Bodycam" to refer to the video titled "AXON_Body_2_Video_2020-07-
15_1910" on the flash drive submitted by Mr. Mercado. Mr. Mercado refers to this video in his
filings using "X81243432," which corresponds to the identifier in the top right corner of the
video. Again, neither party identified the source of this video, but based on the context, the
Court surmises that it was captured by CPD Officer Brandon Decker's body camera.
B. Treatment of Mr. Mercado at the Hospital
Mr. Mercado arrived at the Hospital at approximately 7:37 p.m. [Filing No. 34-1 at 3.]
Dr. Locoh-Donou, Nurse Fluhr, and Nurse Berry were working in the emergency department at
the time of Mr. Mercado's arrival. [Filing No. 34-1 at 3; Filing No. 34-2 at 2; Filing No. 34-3 at

2.] Dr. Locoh-Donou is employed by EPI, which contracts with the Hospital to provide
emergency medicine services. [Filing No. 34-1 at 2-3.] Nurse Fluhr and Nurse Berry are
employed by the Hospital. [Filing No. 34-2 at 2; Filing No. 34-3 at 2.] The legal name of the
Hospital is Bartholomew County Public Hospital d/b/a Columbus Regional Hospital, and it is a
county-owned public hospital. [Filing No. 34-4 at 1.]
Because Mr. Mercado was "severely agitated and combative" when he arrived at the
Hospital, Dr. Locoh-Donou ordered that Mr. Mercado be chemically sedated and restrained in
soft restraints to prevent him from injuring himself or others. [Filing No. 34-1 at 3.]
Accordingly, he was administered a shot containing Haldol, Ativan, and Benadryl at 7:58 p.m.
[Filing No. 34-1 at 3-4.] Before the shot was administered, Mr. Mercado was repeatedly asked if

he had any allergies to medications, but he did not respond. [1910 Bodycam at 36:20-36:30.]
Mr. Mercado did not consent to the shot and had to be held down by police officers and medical
personnel for it to be administered. [1910 Bodycam at 36:30-37:55.] While this was occurring,
Mr. Mercado repeatedly complained that he was being choked, that someone was touching his
neck, and that his neck was being "twisted." [1910 Bodycam at 36:30-37:55.] Mr. Mercado's
head and neck are not constantly visible in the frame of the bodycam video. [See 1910 Bodycam
at 36:30-37:55.] At some points, one officer can be seen stabilizing Mr. Mercado's head with his
hands on Mr. Mercado's head, although the officer is not choking Mr. Mercado or twisting his
neck. [See 1910 Bodycam at 37:30-37:55.] The officer immediately took his hands off of Mr.
Mercado's head and neck once the shot was administered. [1910 Bodycam at 37:50-37:55.] The
chemical sedation caused no physical harm to Mr. Mercado. [Filing No. 34-1 at 5.]
In addition, because Mr. Mercado reported that he had Covid-19, Dr. Locoh-Donou
ordered a Covid-19 Antigen Test with a nasopharyngeal swab specimen. [Filing No. 34-1 at 3-

4.] According to Dr. Locoh-Donou, "[t]his testing was not ordered by the police and was done
for medical purposes in order to protect Mr. Mercado and others who came in contact with him,"
and such testing "was being done frequently at that time on individuals presenting for care to the
[Hospital] regardless of their race, color, national origin, religion, or sex due to the ongoing
COVID-19 pandemic." [Filing No. 34-1 at 4.] Dr. Locoh-Donou further stated that the test did
not pose a substantial risk of serious harm to Mr. Mercado, and in fact not performing the test
would have posed a substantial risk of serious harm to Mr. Mercado and others, especially given
that he was going to be confined in the Bartholomew County Jail. [Filing No. 34-1 at 4.]
Mr. Mercado objected to the Covid-19 test being performed and repeatedly asserted that
no one could extract his DNA or any of his bodily fluids without a warrant. [See 1910 Bodycam

at 42:20-47:30.] He refused to cooperate with the test, and police officers and medical personnel
had to hold him down to perform the nasopharyngeal swab. [Filing No. 34-1 at 4; see also 1910
Bodycam at 44:30-47:30.] Mr. Mercado asserts that one officer put him in a chokehold while
Dr. Locoh-Donou, Nurse Fluhr, Nurse Berry, and other officers held his arms and feet, and that
"[w]hile [his] neck was being twisted and the Doctor and nurse [were] grabbing [him] by [his]
face[,] a Covid-19 test was performed." [Filing No. 41 at 3.] He contends that although his head
and neck cannot be seen in the bodycam footage, it is "obvious" that his "body was being pulled
upward as if in a chokehold while being forced to take a Covid test." [Filing No. 47 at 3; see
also Filing No. 47 at 5 (explaining that "the body camera fram[e] is cut off right at [his] chest
and below his neck" but "you can see [his] body is lifted up off the bed as if he is in a choke hold
being held upwards and pulled while one officer holds down his arm"); Filing No. 47 at 7-8
(asserting that "you can clearly tell he is being held around the neck and being pulled upward").]
The bodycam video is not consistent with Mr. Mercado's assertions. Although the swabbing of

his nose occurs outside the frame, there is no indication that anyone has him in a chokehold at
that time. [See 1910 Bodycam at 45:00-45:55.] In fact, the video shows two medical
professionals standing near Mr. Mercado's head and shoulders, but no police officer in that
immediate area or in such a position that it would have been possible to have put Mr. Mercado in
a chokehold. [See 1910 Bodycam at 45:00-45:55.] Mr. Mercado can also be seen pushing
himself up off the bed with his arms and struggling against the people who are attempting to hold
him down onto the bed. [See 1910 Bodycam at 45:00-45:55.] He does not complain about being
choked or about anyone touching his neck. [See 1910 Bodycam at 45:00-45:55.]
According to Dr. Locoh-Donou, Mr. Mercado was not choked when the specimen was
obtained, he suffered no physical injury from the test, and no police officers were interrogating

him at the time his specimen was obtained. [Filing No. 34-1 at 4.] Mr. Mercado's test was
negative, indicating that he did not have Covid-19. [Filing No. 34-1 at 4.]
After the Covid-19 test was performed, Mr. Mercado told Officer Decker that he had
"swallowed something" and explained that his previous statements in the ambulance suggesting
that he would kill himself were in reference to him having swallowed drugs and that he might die
as a result. [Filing No. 40-2 at 10; 1910 Bodycam at 47:45-51:30.] Officer Decker immediately
informed medical personnel that Mr. Mercado was claiming that he swallowed narcotics. [1910
Bodycam at 50:45-51:15.] Based on this information, Dr. Locoh-Donou ordered an EKG test,
which was performed at 8:25 p.m. and did not reveal any acute findings. [Filing No. 34-1 at 4-
5.] Dr. Locoh-Donou also ordered constant cardiac monitoring and monitoring of Mr. Mercado's
blood glucose and sedation. [Filing No. 34-1 at 5.] In addition, because of Mr. Mercado's self-
inflicted injuries to his head sustained in the ambulance and his complaints of neck pain, Dr.
Locoh-Donou ordered CT imaging of Mr. Mercado's head and cervical spine. [Filing No. 34-1

at 4.] The CT studies "showed no acute intracranial process" but "demonstrated degenerative
disc disease with spondylosis and no acute fracture or malalignment." [Filing No. 34-1 at 4.]
Officer Maddix applied for and was granted a warrant to search Mr. Mercado's person,
which included an x-ray and body cavity search. [Filing No. 40-2 at 11.] Dr. Locoh-Donou
ordered an abdominal x-ray, which he asserts is the only test conducted at the request of the
CPD, while all of the other tests were ordered for Mr. Mercado's care by medical staff, based on
Mr. Mercado's medical history and clinical condition. [Filing No. 34-1 at 5; see also Filing No.
40-2 at 11.] The x-ray revealed a bag of what appeared to be methamphetamine concealed in
Mr. Mercado's underwear. [Filing No. 40-2 at 11.]
Dr. Locoh-Donou performed a final assessment of Mr. Mercado at 11:03 p.m. and

medically cleared him for jail. [Filing No. 34-1 at 5.] Nurse Fluhr and Nurse Berry monitored
Mr. Mercado until he was discharged just before midnight. [Filing No. 34-2 at 3; Filing No. 34-
3 at 3.] He was then transported to the Bartholomew County Jail. [Filing No. 40-2 at 11.]
C. This Lawsuit
In his Amended Complaint, Mr. Mercado asserts the following claims against Dr. Locoh-
Donou, Nurse Fluhr, and Nurse Berry (collectively, "the Medical Defendants"): (1) illegal search
and seizure and excessive force in violation of the Fourth Amendment; (2) failure to intervene;
(3) deliberate indifference; (4) racial discrimination; (5) conspiracy; (6) torture; (7) assault;
(8) battery; (9) "Violation of Reasonable Duty of Care"; (10) negligence; (11) intentional
infliction of emotional distress; (12) "Violation of Equal Protection Law"; and (13) "Human
Rights Violation." [Filing No. 15 at 5-6.] He later voluntarily dismissed the claims for assault
and battery. [Filing No. 32; Filing No. 39.] Against the Hospital and EPI, Mr. Mercado asserts
claims for: (1) negligence; (2) "Responde[a]t Superior Liability"; and (3) emotional distress.

[Filing No. 15 at 6-7.] In his Amended Complaint, he references the following statutes: 42
U.S.C. § 1983; 42 U.S.C. § 1985; and 18 U.S.C. § 2340. [See Filing No. 15.]
III.
DISCUSSION

A. Federal Claims

1. Respondeat Superior Liability

Defendants argue that there is no vicarious liability for claims brought under 42 U.S.C.
§ 1983, and therefore Mr. Mercado cannot assert any of his federal claims against the Hospital or
EPI. [Filing No. 34 at 18.]3
In response,4 Mr. Mercado maintains that because the Medical Defendants were
employed by the Hospital and EPI, the Hospital and EPI are responsible for the Medical
Defendants' violations of his civil rights. [Filing No. 47 at 9.]

3 Defendants further contend that Mr. Mercado has not stated a claim against the Hospital under
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), because he has not
shown that any alleged harm was the result of a policy or a decision by a person with
policymaking authority. [Filing No. 34 at 19.] However, the Court does not read Mr. Mercado's
Amended Complaint as asserting a Monell claim. Further, Mr. Mercado does not discuss a
potential Monell claim in any of his summary judgment filings. [See Filing No. 40; Filing No.
41; Filing No. 45; Filing No. 46; Filing No. 47.] Accordingly, the Court concludes that no
Monell claim is at issue in this lawsuit.

4 In response to Defendants' Motion for Summary Judgment, Mr. Mercado filed two apparently
identical documents titled "Plaintiff[']s Objection For Summary Judgment," [Filing No. 40;
Filing No. 45], two apparently identical affidavits, [Filing No. 41; Filing No. 46 at 1-3], and a
brief in support of his objection to summary judgment, [Filing No. 47]. The Court has reviewed
Defendants do not specifically address this issue in their reply. [See Filing No. 50.]
"Section 1983 provides a federal remedy against state actors who deprive others of
federal rights."5 Bohanon v. City of Indianapolis, 46 F.4th 669, 675 (7th Cir. 2022). It is well
established that there is no vicarious or respondeat superior liability in § 1983 actions. See City

of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) ("Respondeat superior or vicarious liability
will not attach under § 1983."); Taylor v. Ways, 999 F.3d 478, 493 (7th Cir. 2021) ("There is no
such thing as respondeat superior liability for government officials under § 1983.").
Accordingly, Mr. Mercado cannot assert any of his federal claims against the Hospital or EPI on
a theory of vicarious liability. Defendants' Motion for Summary Judgment is GRANTED as to
all federal claims against the Hospital and EPI. The Court therefore considers Mr. Mercado's
federal claims as they relate to the Medical Defendants only.
2. Fourth Amendment Search and Excessive Force

In support of their Motion for Summary Judgment, Defendants assert that the Medical
Defendants did not violate Mr. Mercado's Fourth Amendment rights by administering a Covid-
19 test because the test was reasonable under the circumstances and not done for purposes of
determining his guilt or innocence of any crime, but instead was done to assure his wellbeing
before transporting him to jail and to protect the wellbeing of others who would come into
contact with him. [Filing No. 34 at 12-16.] In the alternative, Defendants argue that even if the
Covid-19 test violated the Fourth Amendment, they are entitled to qualified immunity from Mr.
Mercado's claims because it was not clearly established on July 15, 2020 that an involuntary

all of these materials and considers them collectively to constitute Mr. Mercado's response. In
the interest of simplicity, the Court will cite to only one of each of the identical pairs of filings.

5 The Medical Defendants concede that they are state actors solely for purposes of their Motion
for Summary Judgment. [Filing No. 34 at 12.]
nasopharyngeal swab Covid-19 test under the circumstances presented here violated the Fourth
Amendment. [Filing No. 34 at 22-24.]
Mr. Mercado asserts that excessive force was used to compel him to submit to a Covid-19
test, in violation of the Fourth Amendment. [Filing No. 47 at 1; Filing No. 47 at 6-8.]

Specifically, Mr. Mercado asserts that "one officer" put him in a chokehold while the Medical
Defendants and other officers held his arms and feet, and that "[w]hile [his] neck was being
twisted and the Doctor and nurse [were] grabbing [him] by [his] face[,] a Covid-19 test was
performed." [Filing No. 41 at 3.] Mr. Mercado further argues that the Covid-19 test itself
violated the Fourth Amendment because it was done without a warrant. [Filing No. 47 at 6-8.]
He maintains that the test was unnecessary and "pointless" because: (1) he never complained of
Covid-19 symptoms; (2) there was no treatment or vaccine available at the time, so a positive
result would not have led to treatment for Covid-19; and (3) the jail he was being transported to
was already on lockdown as a result of the Covid-19 pandemic, and therefore he was going to be
put into segregation and not going to come into contact with others at the jail, regardless of

whether he had Covid-19 or not. [Filing No. 47 at 1-2; Filing No. 47 at 7.] Finally, Mr.
Mercado points out that he was a pretrial detainee, not a convicted prisoner, at the time of the
test, and therefore he was subject to greater protections than prisoners in other cases in which
courts have held that forced Covid-19 testing is permissible. [Filing No. 47 at 8.]
In their reply, Defendants maintain that Mr. Mercado's Fourth Amendment rights were
not violated. [Filing No. 50 at 3-6.] Defendants discuss the video evidence, contend that it does
not support Mr. Mercado's version of events, and assert that the force used to complete the
Covid-19 test was objectively reasonable based on the totality of the circumstances. [Filing No.
50 at 3-5.] Defendants also reiterate that the Covid-19 test was medically necessary and was
performed in an objectively reasonable manner. [Filing No. 50 at 6.]
a. Search

"The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides
that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.'" Maryland v. King, 569 U.S. 435, 446
(2013). "The Amendment guarantees the privacy, dignity, and security of persons against certain
arbitrary and invasive acts by officers of the Government or those acting at their direction."
Skinner v. Ry. Lab. Executives' Ass'n, 489 U.S. 602, 613-14 (1989). "[I]ntrusions into the human
body," such as drawing an individual's blood to test it for alcohol content or swabbing an
individual's mouth for DNA, have been deemed searches that implicate the Fourth Amendment.
Schmerber v. California, 384 U.S. 757, 767-71. See also Birchfield v. North Dakota, 579 U.S.
438, 455 (2016) ("[O]ur cases establish that the taking of a blood sample or the administration of
a breath test is a search."); Maryland v. King, 569 U.S. at 446 ("It can be agreed that using a

buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a
search."). Accordingly, in this case the Court assumes that the nasopharyngeal Covid-19 test
administered to Mr. Mercado constituted a search for purposes of the Fourth Amendment. See
Streight v. Pritzker, 2021 WL 4306146, at *5 (N.D. Ill. Sept. 22, 2021) ("Streight's Fourth
Amendment right is implicated by the taking of saliva for a COVID test.").
However, "the Fourth Amendment does not proscribe all searches and seizures, but only
those that are unreasonable." Skinner, 489 U.S. at 619. Whether a search is reasonable depends
on the totality of the circumstances, and "the permissibility of a particular practice 'is judged by
balancing its intrusion on the individual's Fourth Amendment interests against its promotion of
legitimate governmental interests.'" Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
In conducting this balancing, courts consider "the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and the place in which it is conducted."
Brown v. Polk Cnty., Wisconsin, 965 F.3d 534, 538 (7th Cir. 2020), cert. denied, 141 S. Ct. 1304

(2021) (internal quotations and citation omitted).
Turning first to the nature of the intrusion upon Mr. Mercado's Fourth Amendment rights,
the Court concludes that a compulsory nasopharyngeal swab to test for Covid-19 was only
minimally intrusive. Other courts that have considered this issue have characterized
nasopharyngeal swab Covid-19 tests as "negligible intrusions" into the privacy of the person
being tested. See Burcham v. City of Los Angeles, 562 F. Supp. 3d 694, 703 (C.D. Cal. 2022)
(collecting cases). This is because, although the test requires a swab be taken from inside the
person's body, the test is performed in a matter of seconds, is not particularly painful or
humiliating, and does not involve a body part traditionally shielded by great privacy. Id.
(citations omitted). Furthermore, a nasopharyngeal swab is similar in nature to buccal swabs

used to collect DNA samples, which the Supreme Court has specifically deemed a negligible
intrusion. See Maryland v. King, 569 U.S. at 446 ("A buccal swab is a far more gentle process
than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and
although it can be deemed a search within the body of the arrestee, it requires no surgical
intrusions beneath the skin. The fact than an intrusion is negligible is of central relevance to
determining reasonableness, although it is still a search as the law defines that term.") (internal
quotations and citation omitted).
On the other side of the scale, the government interest in procuring a Covid-19 test from
Mr. Mercado was significant. The Seventh Circuit has recognized that the state has "an obvious
interest in ensuring that detainees admitted to the jail do not need immediate medical care."
Sullivan v. Bornemann, 384 F.3d 372, 376 (7th Cir. 2004). It also has a significant interest in
preventing the spread of contagious diseases among prison and jail populations. See Jolly v.
Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (recognizing that "correctional officials have an

affirmative obligation to protect inmates from infectious disease"); Wilcox v. Lancour, 2021 WL
230113, at *8 (W.D. Mich. Jan. 22, 2021) (recognizing "a legitimate—indeed compelling—
governmental interest in testing all prisoners for the presence of the SARS-CoV-2 virus, in order
to meet its obligations to control contagion and to protect its other prisoners and staff"); Streight,
2021 WL 4306146, at *6 (concluding that the "nature and immediacy of the government concern
[regarding the spread of Covid-19] is great"). In addition, the state has an interest in containing
the spread of the Covid-19 virus outside of prisons and jails. See Roman Cath. Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (recognizing that "[s]temming the spread of
COVID-19 is unquestionably a compelling [state] interest").
Mr. Mercado was tested for Covid-19 because he repeatedly said that he had it, and

because knowing whether he did was necessary to help better protect the people he would come
into contact with at the Hospital, during transport, and eventually at the Bartholomew County
Jail. Any suggestion by Mr. Mercado that he did not tell the police or medical personnel that he
had Covid-19 is blatantly contradicted by the video evidence. [See 1902 Bodycam at 04:20-
04:24 (Mr. Mercado stating, "Dude, I got corona, man!"); 1910 Bodycam at 14:05-14:15; 23:50-
24:10.] Furthermore, any argument that the Covid-19 test was "pointless" because there was no
treatment for Covid-19 at the time and because the Bartholomew County Jail was on lockdown is
nonsensical. Although Covid-19 treatments were likely not available to Mr. Mercado in July
2020, knowing whether he was infected with Covid-19 would have been relevant information to
Hospital and jail staff in their efforts to treat any symptoms and to prevent contact between
infected individuals and others.
"[T]he ultimate measure of the constitutionality of a governmental search is
'reasonableness.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Here, the balance

of competing interests weighs heavily in favor of finding that the compelled Covid-19 test
performed on Mr. Mercado was reasonable under the circumstances. The test was performed at
the Hospital for medical purposes, in furtherance of the government's recognized interests in
limiting the spread of Covid-19, and to protect the individuals he came into contact with after he
stated that he was infected with the virus—not for the purpose of gathering evidence related to
any crime. It was a relatively quick process that only minimally intruded onto Mr. Mercado's
privacy interests. Accordingly, the Court concludes that the test was reasonable and did not
violate Mr. Mercado's Fourth Amendment right against unreasonable searches. See Wilcox, 2021
WL 230113, at *11 ("[T]he balancing of Plaintiff's limited Fourth Amendment interest against
the significant governmental interest in controlling a pandemic weighs heavily in favor of

permitting Defendants to subject Plaintiff to the limited intrusion of a deep nasal swab.").
In any event, the Medical Defendants are protected by qualified immunity. "A public
official is entitled to qualified immunity from suit unless he violated a clearly established
constitutional right." Dockery v. Blackburn, 911 F.3d 458, 466 (7th Cir. 2018) (citing Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011)). Whether qualified immunity applies involves two questions,
which may be addressed in either order: (1) whether the facts shown by the plaintiff establish a
violation of a constitutional right; and (2) if so, whether that right was clearly established at the
time of the defendant's alleged misconduct. Dockery, 911 F.3d at 466 (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). "To show that a right is clearly established, the plaintiff
must demonstrate that existing caselaw at the time of the events in question 'placed the statutory
or constitutional question beyond debate.'" Dockery, 911 F.3d at 466 (quoting Al-Kidd, 563 U.S.
at 741).
Mr. Mercado has not pointed to—and the Court's research has not revealed—any binding

case clearly establishing, as of July 15, 2020, that medical providers forcibly administering a
nasopharyngeal swab Covid-19 test to a person in police custody who claims to be infected with
Covid-19 as a part of the procedure to medically clear him for jail violates the Fourth
Amendment. Accordingly, the Medical Defendants are entitled to qualified immunity on Mr.
Mercado's Fourth Amendment search claim.
For all of these reasons, Defendants' Motion for Summary Judgment, [Filing No. 33], is
GRANTED as to Mr. Mercado's claim that the Covid-19 test violated his rights under the Fourth
Amendment.
b. Excessive Force

Mr. Mercado asserts that excessive force was used against him while he was at the
Hospital, both when medical staff was administering the Covid-19 test and at other times. As an
initial matter, although the parties discuss Mr. Mercado's excessive force claim under the Fourth
Amendment, the Court notes that the Due Process Clause of the Fourteenth Amendment protects
pretrial detainees from excessive force while in custody. See, e.g., Kingsley v. Hendrickson, 576
U.S. 389, 391-92 (2015). However, the Court need not determine whether the Fourth or the
Fourteenth Amendment applies to this situation, because under either amendment, a plaintiff
must demonstrate that the force used against him was objectively unreasonable. See Lombardo
v. City of St. Louis, Missouri, 141 S. Ct. 2239, 2241 (2021) ("We need not address whether the
Fourth or Fourteenth Amendment provides the proper basis for a claim of excessive force against
a pretrial detainee in Gilbert's position. Whatever the source of law, in analyzing an excessive
force claim, a court must determine whether the force was objectively unreasonable in light of
the facts and circumstances of each particular case.") (internal quotations and citations omitted).
Objective reasonableness turns on the facts and circumstances of each case and is judged

from the perspective of a reasonable officer on the scene. Kingsley, 576 U.S. at 397 (citing
Graham v. Connor, 490 U.S. 386, 396 (1989)). The following considerations may bear on the
reasonableness or unreasonableness of the force used: (1) "the relationship between the need for
the use of force and the amount of force used"; (2) "the extent of the plaintiff's injury"; (3) "any
effort made by the officer to temper or to limit the amount of force"; (4) "the severity of the
security problem at issue"; (5) "the threat reasonably perceived by the officer"; and (6) "whether
the plaintiff was actively resisting." Kingsley, 576 U.S. at 397. This list is not exhaustive. Id.
To the extent that Mr. Mercado asserts that a police officer put him in a chokehold, that
assertion does not establish an excessive force claim against the Medical Defendants. No police
officers are parties to this action, so any conduct by the police officers cannot be the basis of Mr.

Mercado's excessive force claims against the Medical Defendants. To the extent that any
officers' actions are relevant to Mr. Mercado's claim that the Medical Defendants failed to
intervene to prevent a violation of his constitutional rights, those actions are discussed below
with respect to the failure-to-intervene claim. The Court therefore only addresses Mr. Mercado's
assertions that the Medical Defendants used excessive force by holding him down or placing him
in a chokehold either to administer the sedation shot or to perform the Covid-19 test.
For the reasons described above, the video evidence does not support Mr. Mercado's
assertion that he was placed in a chokehold by any of the Medical Defendants while the Covid-
19 test was performed or while the sedation shot was administered. [See 1910 Bodycam at
36:30-37:55; 1910 Bodycam at 45:00-45:55.] But even accepting Mr. Mercado's version of
events as true and assuming that one of the Medical Defendants put him in a brief chokehold
while restraining him, the Court finds that no reasonable jury could conclude that the force used
against him by the Medical Defendants was objectively unreasonable under the circumstances.

The video evidence demonstrates that Mr. Mercado was uncooperative, agitated, and
continuously thrashed around and struggled against his restraints, the officers, and the medical
personnel, which posed a risk of harm to himself and to those around him. As noted above, the
government has a significant interest in providing medical care to and medically clearing
detainees who are on their way to jail, and in order to administer that necessary care, the Medical
Defendants and others on the scene had to restrain Mr. Mercado. In addition, Mr. Mercado has
provided no evidence that the Medical Defendants' actions resulted in any injury to him, and
indeed his CT scan showed no fracture or malalignment of his neck. With respect to the alleged
chokehold specifically, the video evidence demonstrates that Mr. Mercado was not rendered
unconscious or otherwise incapacitated and he continued to speak and yell. Considering all of

these circumstances, no reasonable jury could conclude that the force used against Mr. Mercado
was excessive or unreasonable.
In any event, "[u]se of excessive force is an area of the law 'in which the result depends
very much on the facts of each case,' and thus [state actors] are entitled to qualified immunity
unless existing precedent 'squarely governs' the specific facts at issue." Kisela v. Hughes, 138 S.
Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)). Mr. Mercado has not
pointed to—and the Court's research has not revealed—any binding caselaw clearly establishing
that medical professionals use excessive force when they restrain a pretrial detainee for purposes
of administering necessary medical care and testing in circumstances like the ones presented
here. The Medical Defendants are therefore entitled to qualified immunity on Mr. Mercado's
claims of excessive force.
For the foregoing reasons, Defendants' Motion for Summary Judgment, [Filing No. 33],
is GRANTED with respect to the excessive force claims.

3. Failure to Intervene

Defendants argue that "[t]here is simply no legal justification supporting a failure to
intervene charge against [the Medical Defendants] when considering the totality of the
circumstances." [Filing No. 34 at 17.] They contend that Mr. Mercado created the situation of
which he complains because he was "violent, combative, agitated, uncooperative and
screaming," but the Medical Defendants did not use excessive force against him nor have any
knowledge of Mr. Mercado being choked or his Fourth Amendment rights being violated.
[Filing No. 34 at 18.]
In response, Mr. Mercado asserts that one of the officers was choking him while the
Medical Defendants "did nothing." [Filing No. 41 at 2; see also Filing No. 47 at 9.] He argues
that the Medical Defendants "allowed [him] to be hurt by officers" during the taking of the
Covid-19 test and that the Medical Defendants failed to prevent him from being "choked."
[Filing No. 47 at 9.]
Defendants do not specifically address this claim in their reply. [See Filing No. 50.]
A public official who is present and fails to intervene to prevent another from violating
an individual's constitutional rights may be liable under § 1983 if he or she: (1) knows or has
reason to know that the individual's constitutional rights are being violated; and (2) has a
"realistic opportunity" to intervene. Doxtator v. O'Brien, 39 F.4th 852, 864-65 (7th Cir. 2022).
"'Whether [a state actor] had sufficient time to intervene or was capable of preventing the harm
caused by [another state actor] is generally an issue for the trier of fact unless, considering all the
evidence, a reasonable jury could not possibly conclude otherwise.'" Id. (quoting Abdullahi v.
City of Madison, 423 F.3d 763, 774 (7th Cir. 2005)).
Even accepting Mr. Mercado's version of events as true and assuming that an officer put

him in a brief chokehold while restraining him, the Court finds that no reasonable jury could
conclude that any officer used excessive force for the same reasons that no reasonable jury could
conclude that any of the Medical Defendants used excessive force. Any force used by the
officers in restraining Mr. Mercado was objectively reasonable under the circumstances.
Because there was no excessive force by anyone, Mr. Mercado cannot sustain a claim against the
Medical Defendants for failure to intervene. See Abdullahi, 423 F.3d at 767-68 ("Though legally
distinct, the fate of plaintiff's failure to intervene claim is closely linked to that of her excessive
force claim since, by definition, if there was no excessive force then there can be no failure to
intervene."). Defendants' Motion for Summary Judgment, [Filing No. 33], is GRANTED as to
all claims for failure to intervene.

4. Deliberate Indifference

Defendants argue that any claim for "deliberate indifference" fails because the medical
care provided to Mr. Mercado was objectively reasonable under the circumstances. [Filing No.
34 at 14-17.] Defendants assert that courts considering the reasonableness of medical care
provided to a detainee "usually do so in situations where the claim involves medical care that
should have been rendered to an individual," but in this case Mr. Mercado was not denied
medical services but instead was "unreasonably refusing" medical testing. [Filing No. 34 at 15.]
Accordingly, Defendants assert, applying deliberate indifference caselaw to Mr. Mercado's
claims "is like trying to fit a square peg into a round hole." [Filing No. 34 at 15.] Nevertheless,
Defendants argue that no reasonable jury could find that the care provided was objectively
unreasonable, because they addressed his serious medical need for a Covid-19 test by
administering the test and addressed the possibility that he ingested drugs by performing an EKG
and constant monitoring. [Filing No. 34 at 15-17.] Defendants also point out that Mr. Mercado's

sedation was not contraindicated and caused no harm to him. [Filing No. 34 at 17.]
Mr. Mercado responds that Dr. Locoh-Donou forcibly administered a shot without regard
to the possibility that Mr. Mercado may have swallowed drugs. [Filing No. 47 at 4.]
Defendants do not specifically address this claim in their reply. [See Filing No. 50.]
Although Mr. Mercado frames his claim as one for "deliberate indifference," the Court
construes the claim as a challenge under the Fourteenth Amendment to the adequacy of the
medical care provided to him. See McCann v. Ogle Cnty., Illinois, 909 F.3d 881, 884 (7th Cir.
2018) (recognizing that the Seventh Circuit's decision in Miranda v. County of Lake, 900 F.3d
335 (7th Cir. 2018), "replac[ed] deliberate indifference with a standard requiring a showing of
objective reasonableness for a claim challenging the medical care provided to a pretrial
detainee").6 A pretrial detainee alleging inadequate medical care under the Due Process Clause

of the Fourteenth Amendment must make two showings. McCann, 909 F.3d at 886. First, he
must show that the defendants "acted purposefully, knowingly, or perhaps even recklessly" in
handling his medical care; "[a] showing of negligence or even gross negligence will not suffice."
Id. (quotations and citations omitted). Second, the pretrial detainee must show that the
defendants' actions were objectively unreasonable. Id.

6 To the extent that Mr. Mercado's claim could arguably be construed as a due process claim
relating to the violation of his Fourteenth Amendment right to refuse medical treatment, the
Seventh Circuit has indicated that a pretrial detainee "ha[s] no right to refuse treatment once he
[is] arrested and transported to the emergency room" during the process of medically clearing
him for jail, noting that "the state has a substantial interest in assuring the medical stability of its
pretrial detainees." Sullivan v. Bornemann, 384 F.3d 372, 378 (7th Cir. 2004).
The video evidence shows that Mr. Mercado did not inform the Medical Defendants (or
anyone else) of the possibility that he may have swallowed narcotics until long after he had
already been administered the shot intended to chemically sedate him. [See 1910 Bodycam at
36:30-37:55.] Before administering the shot to Mr. Mercado, Dr. Locoh-Donou repeatedly asked

him if he was allergic to any medications, and Mr. Mercado did not respond, nor did he take that
opportunity to disclose the fact that he may have previously swallowed narcotics. [1910
Bodycam at 36:20-36:30.] Accordingly, it was not unreasonable for the Medical Defendants to
order and administer the shot without regard to how it could potentially interact with swallowed
narcotics, given that they had no knowledge of any swallowed narcotics.
Furthermore, after Mr. Mercado asserted that he had swallowed drugs, the Medical
Defendants performed an EKG test, which did not reveal any acute findings, and they continued
to monitor Mr. Mercado's cardiac activity, blood glucose, and sedation. [Filing No. 34-1 at 4-5.]
Mr. Mercado does not offer any argument suggesting that these actions were objectively
unreasonable under the circumstances, and the Court finds that no jury could conclude that they

were. Furthermore, Mr. Mercado does not provide any evidence suggesting that any alleged
inadequacy in the care provided to him by the Medical Defendants resulted in any harm. Indeed,
he does not confirm whether he ever in fact swallowed any narcotics, nor does he allege that
undetected swallowed narcotics caused him harm in any way. See Miranda, 900 F.3d at 347
(explaining that, to recover on a due process claim involving inadequate medical care, the
plaintiff must provide evidence demonstrating that the inadequacy of care "caused some degree
of harm").
In sum, no reasonable jury could conclude that the medical care provided to Mr. Mercado
was inadequate for purposes of the Fourteenth Amendment. Defendants' Motion for Summary
Judgment, [Filing No. 33], is GRANTED as to this claim.
5. Racial Discrimination and Equal Protection

Defendants argue that "the mere fact that Mr. Mercado happens to be African American
does not, without more, create a presumption of race discrimination," and "[a] mere conclusory
allegation of intentional discrimination is insufficient for the matter to go to trial." [Filing No.
34 at 20.] Defendants assert that it is undisputed that Covid-19 testing was being done
frequently at the Hospital on individuals receiving care, regardless of their race, color, national
origin, religion, or sex. [Filing No. 34 at 20.]
Mr. Mercado does not discuss racial discrimination or equal protection in his response.
[See Filing No. 40; Filing No. 41; Filing No. 45; Filing No. 46; Filing No. 47.]
Defendants do not specifically address this claim in their reply. [See Filing No. 50.]

It is well-settled that "a party opposing a summary judgment motion must inform the trial
judge of the reasons, legal or factual, why summary judgment should not be entered." De v. City
of Chicago, 912 F. Supp. 2d 709, 733 (N.D. Ill. 2012) (quoting Reklau v. Merch. Nat'l Corp., 808
F.2d 628, 630 n. 4 (7th Cir. 1986)). When the party fails to respond to the other side's argument,
the party waives its opposition to that argument. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466
(7th Cir. 2010) ("Failure to respond to an argument . . . results in waiver."); see also Mwangangi
v. Nielsen, 48 F.4th 816, 832 (7th Cir. 2022) (stating that "[a] litigant who fails to press a point
by supporting it with pertinent authority, or by showing why it is a good point despite a lack of
supporting authority or in the face of contrary authority, forfeits the point") (internal quotations
and citation omitted) (alteration original). In addition, "[f]ailure to set forth any evidence or to
develop any arguments in opposition to the moving party's summary judgment motion results in
waiver of the nonmoving party's arguments and an abandonment of his claims." De, 912 F.
Supp. 2d at 734 (citing, inter alia, Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003)
("[B]ecause [the plaintiff] failed to delineate his negligence claim in his district court brief in

opposition to summary judgment . . . his negligence claim is deemed abandoned.")).
Because Mr. Mercado did not respond to Defendants' arguments concerning his claims of
racial discrimination and equal protection violations, he has waived any argument in opposition.
In addition, because Mr. Mercado did not mention these claims in his summary judgment
briefing, he has abandoned these claims. As a result, Defendants' Motion for Summary
Judgment, [Filing No. 33], is GRANTED as to any potential race discrimination and equal
protection claims.
6. Conspiracy

Defendants argue that Mr. Mercado cannot establish a conspiracy under 42 U.S.C. § 1985
because he has no evidence demonstrating a racial or other class-based discriminatory animus
motivating the Medical Defendants' alleged conduct. [Filing No. 34 at 19-20.]
In response, Mr. Mercado asserts that the Medical Defendants violated § 1985 because
they "conspired with the Columbus Police Department and with themselves to violate [his] 4th
Amendment right by forcing a medical test on [him] without a warrant and using excessive force
then lying about it." [Filing No. 47 at 10.]
Defendants do not specifically address the conspiracy claim in their reply. [See Filing
No. 50.]
Section 1985(3) "provides a cause of action for persons who are victims of a conspiracy
to deprive them of the equal protection of the laws or equal privileges and immunities under the
laws." Milchtein v. Milwaukee Cnty., 42 F.4th 814, 827 (7th Cir. 2022) (internal quotations and
citations omitted). A plaintiff bringing a claim under § 1985(3) must prove: (1) the existence of
a conspiracy; (2) that the conspiracy was for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) an
injury to the plaintiff's person or property or a deprivation of any right or privilege of a citizen of
the United States. Id. (citing United Bhd. of Carpenters v. Scott, 463 U.S. 825, 828-29 (1983)).
Additionally, the plaintiff must prove that the conspiracy was motivated by a racial or other
class-based invidiously discriminatory animus. Milchtein, 42 F.4th at 827 (quoting Bowman v.
City of Franklin, 980 F.2d 1104, 1109 (7th Cir. 1992)).
Here, Mr. Mercado does not present any evidence suggesting that any Defendant's
conduct was motivated by racial or other discriminatory animus. He also does not develop any
arguments in his summary judgment briefing concerning racial or other discrimination, and
therefore any such argument is waived. See Mwangangi, 48 F.4th at 832; Bonte, 624 F.3d at

466; Palmer, 327 F.3d at 597-98. Accordingly, Defendants' Motion for Summary Judgment,
[Filing No. 33], is GRANTED with respect to Mr. Mercado's § 1985 conspiracy claim.7

7 Additionally, the Court notes that although the parties discuss Mr. Mercado's conspiracy claim
under § 1985, a plaintiff may also pursue relief under § 1983 where the defendants conspired to
deprive him of his constitutional rights. "To establish conspiracy liability in a § 1983 claim, the
plaintiff must show that (1) the individuals reached an agreement to deprive him of his
constitutional rights, and (2) overt acts in furtherance actually deprived him of those rights."
Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). Because Mr. Mercado has not
demonstrated an underlying constitutional violation, any potential claim for conspiracy under
§ 1983 would also fail. See Daugherty v. Page, 906 F.3d 606, 612 (7th Cir. 2018) (explaining
that a plaintiff alleging conspiracy "must show an underlying constitutional violation and
demonstrate that the defendants agreed to inflict the constitutional harm") (quotations and
citation omitted).
7. Torture

Defendants assert that Mr. Mercado's argument that the Medical Defendants tortured him
as defined in 18 U.S.C. § 2340 fails as a matter of fact and law. [Filing No. 34 at 20-21.]
Specifically, they contend that the torture statute applies only to acts of torture committed
outside of the United States and therefore does not apply to Mr. Mercado's treatment at the
Hospital. [Filing No. 34 at 20-21.]
In response, Mr. Mercado states that his claim under § 2340 "evolve[s] out of the
excessive force used against [him] from the Defendants to extract information in the results of a
Covid-19 test and failing to intervene on [his] behalf while allowing and participating in
excessive force." [Filing No. 47 at 1.] He argues that because he was a prisoner being held by
state actors and the Medical Defendants used excessive force and inflicted pain to "extract
information from a Covid-19 test," he has sufficiently asserted a claim under § 2340. [Filing No.
47 at 10.]
Defendants do not specifically address this claim in their reply. [See Filing No. 50.]

Section 2340 defines "torture" to mean an "act committed by a person acting under the
color of law specifically intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another person within his custody or
physical control." A separate statute, 18 U.S.C. § 2340A, defines the offense of torture, stating
in relevant part that "[w]hoever outside the United States commits or attempts to commit torture
shall be fined under this title or imprisoned not more than 20 years." Neither of these provisions
create a private cause of action for civil damages resulting from alleged torture. See Renkel v.
United States, 456 F.3d 640, 644-45 (6th Cir. 2006) ("[Sections 2340 and 2340A] criminalize
torture outside the United States; they do not provide civil redress for torture within the United
States. For the latter, a plaintiff must pursue [his] claim under the appropriate domestic law,
which might include the [Federal Tort Claims Act] or the Eighth Amendment, and meet the
jurisdictional and substantive requirements for civil relief."); Story v. Best Way Transportation
Inc., 2020 WL 5045658, at *4 (N.D. Tex. Aug. 4, 2020), report and recommendation adopted,

2020 WL 5038503 (N.D. Tex. Aug. 26, 2020) (acknowledging that "no private cause of action
exists under" § 2340); Jamison v. Langston, 2006 WL 2787844, at *2 (S.D. Ga. Sept. 25, 2006)
("Section 2340A is a criminal statute and does not allow an individual to pursue a claim in a civil
proceeding. To the extent Plaintiff seeks to recover for acts of torture, as defined in this statute,
he cannot do so."). Instead, Mr. Mercado's torture claim is more appropriately understood as a
claim for excessive force in violation of the Fourth or Fourteenth Amendment, as discussed
above. Accordingly, Defendants' Motion for Summary Judgment, [Filing No. 33], is
GRANTED as to the claim of torture.
8. "Human Rights Violation"

Although Defendants recognize Mr. Mercado's claim for "Human Rights Violation," [see
Filing No. 34 at 1-2 (listing the claims asserted in the Amended Complaint)], they do not make
any specific argument concerning this claim in their briefing, [see Filing No. 34]. Mr. Mercado
similarly does not make any specific arguments in his response concerning any "Human Rights
Violation." [See Filing No. 40; Filing No. 41; Filing No. 45; Filing No. 46; Filing No. 47.]
Accordingly, the Court interprets Mr. Mercado's reference in the Amended Complaint to
"Human Rights Violation" to be merely another label for his constitutional claims, each of which
has been discussed above, and does not analyze it as a separate claim.
B. State Law Claims

1. Supplemental Jurisdiction
Because the Court has granted Defendants' Motion for Summary Judgment on all of Mr.
Mercado's federal claims, it must determine whether it will exercise jurisdiction over his state
law claims. See, e.g., RWJ Mgmt. Co. v. BP Prod. N. Am., Inc., 672 F.3d 476, 478 (7th Cir.
2012) ("When federal claims drop out of the case, leaving only state-law claims, the district court
has broad discretion to decide whether to keep the case or relinquish supplemental jurisdiction
over the state-law claims."). When deciding whether to exercise supplemental jurisdiction, "a
federal court should consider and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity." City of Chicago v. Int'l Coll. of
Surgeons, 522 U.S. 156, 173 (1997) (quotations and citations omitted). Although there is a
presumption in favor of relinquishing jurisdiction, the presumption may be overcome in certain
circumstances, including when "substantial judicial resources have already been committed, so
that sending the case to another court will cause a substantial duplication of effort," or "when it is

absolutely clear how the pendent claims can be decided." RWJ Mgmt. Co., 672 F.3d at 480
(quoting Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514-15 (7th Cir. 2009)).
The Court finds that exercising supplemental jurisdiction over Mr. Mercado's state law
claims is appropriate in this case. Most significantly, this case has already reached the summary
judgment stage, and remanding it to state court for consideration of the state law claims would
waste judicial resources and result in a substantial duplication of effort. As a result, the judicial
economy factor weighs heavily in favor of exercising jurisdiction. Furthermore, a state forum
would not be significantly more convenient or fair for the parties, and no party would be
prejudiced by the Court exercising jurisdiction over the state law claims. Finally, for the reasons
outlined below, it is clear how the state law claims should be decided based on principles of
waiver and immunity. Accordingly, the Court will not relinquish jurisdiction over Mr.
Mercado's state law claims.
2. Merits

Defendants assert that Mr. Mercado's state law claims are barred for the following
reasons: (1) Defendants are entitled to immunity under Indiana Code §§ 34-30-13.5-1 and 34-30-
13.5-3, which immunize individuals and facilities providing healthcare services in response to an
event that is declared a disaster or emergency; (2) all claims except for those of medical
malpractice are subject to the notice requirements of the Indiana Tort Claims Act ("ITCA"), and
Mr. Mercado failed to comply with those requirements; and (3) all of Mr. Mercado's claims fall
within the purview of the Indiana Medical Malpractice Act ("IMMA"), and Mr. Mercado failed
to comply with the exhaustion requirements of that statute. [Filing No. 34 at 24-27.]
In response, under a heading titled "State Claims," Mr. Mercado, without elaboration,
"admits to giving no notice as required by the Tort Claims Act." [Filing No. 47 at 10.] He does

not address any of Defendants' other arguments concerning the state law claims.
Defendants do not specifically address the state law claims in their reply. [See Filing No.
50.]
Because Mr. Mercado concedes that he did not comply with the notice requirements of
the ITCA, any of his claims subject to the ICTA are barred. See, e.g., Murphy v. Indiana State
Univ., 153 N.E.3d 311, 317 (Ind. Ct. App. 2020) ("The [ITCA] provides that a tort claim against
a government entity is barred unless the claimant provides the entity with timely notice of the
claim."). Specifically, the ICTA requires that a plaintiff give notice of any "claim against a
political subdivision," Ind. Code § 34-13-3-8(a), and defines "political subdivision" to include a
"city or county hospital," Ind. Code § 34-6-2-110(8). Accordingly, any claims against the
Hospital, Nurse Berry, and Nurse Fluhr that are subject to the ICTA are barred for failure to
provide the required notice. See Alexander v. City of S. Bend, 256 F. Supp. 2d 865, 875 (N.D.
Ind. 2003) ("The ITCA applies to suits against employees of political subdivisions as well as the

subdivisions themselves.") (citing Davidson v. Perron, 716 N.E.2d 29, 34 (Ind. Ct. App. 1999)).
But the inquiry does not end there, because to the extent that Mr. Mercado's claims fall
within the purview of the IMMA, the ITCA's notice requirement does not apply and therefore
would not bar Mr. Mercado's claims. See Putnam Cnty. Hosp. v. Sells, 619 N.E.2d 968, 969
(Ind. Ct. App. 1993) ("[B]ecause we conclude that [plaintiff's] claim is one of medical
malpractice, the notice provisions of the Tort Claims Act do not apply."). And, although
Defendants raise the issue of the ITCA, they simultaneously argue that "Mr. Mercado's state law
claims all appear to fall within the purview and requirements of the [IMMA]" and therefore
would not be subject to the ITCA. [Filing No. 34 at 27 (emphasis added).] Despite this
inconsistency, the Court concludes that the IMMA—not the ITCA—applies in this case to bar

Mr. Mercado's state law claims.
Mr. Mercado does not respond to Defendants' arguments that all Defendants are qualified
healthcare providers under the IMMA or that all of his state law claims fall within the purview of
the IMMA, and therefore he has waived any opposition to those arguments. See Mwangangi, 48
F.4th at 832; Bonte, 624 F.3d at 466; Palmer, 327 F.3d at 597-98. Regardless, and in the interest
of completeness, the Court notes that to determine whether a claim falls within the purview of
the IMMA, courts "look to the substance of a claim, not the manner in which the conduct is
framed in a pleading by the claimant." G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76, 85 (Ind.
Ct. App. 2019). "A medical malpractice claim under the [IMMA] exists only when the substance
of the claim involves a causal connection between the negligence and the nature of the
provider/patient relationship." Id. The provider's conduct must be "curative or salutary in nature
or effect," meaning it is undertaken in the interest of, or for the benefit of, the patient's health.
Id. (citation omitted). The IMMA will not apply to general negligence that may occur during the

course of ongoing medical treatment if the allegedly negligent act "does not involve curative or
salutary conduct, the promotion of the patient's health, or the exercise of professional expertise,
skill, or judgment." Id. Any claim under the IMMA must be presented to a medical review
panel before the plaintiff can proceed in court, and the "medical review panel requirement is a
substantive feature of the [IMMA] that must be enforced in federal court." Thompson v. Cope,
900 F.3d 414, 424 (7th Cir. 2018); Ind. Code § 34-18-8-4.
Mr. Mercado's remaining state law claims consist of: (1) negligence (which he also calls
"Violation of Reasonable Duty of Care"); (2) intentional infliction of emotional distress; and
(3) "Responde[a]t Superior Liability." [See Filing No. 15 at 5-7.] Although he does not
precisely articulate the basis for each of his state law claims, the acts of which he primarily

complains include the Medical Defendants: (1) ordering and administering chemical sedation
without regard to the possibility that he may have swallowed narcotics; (2) forcibly holding him
down to administer the sedation or to perform the Covid-19 test; and (3) failing to provide
adequate care or monitoring. The Court finds that all of these claims fall within the purview of
the IMMA. And because there is no evidence that Mr. Mercado presented his claims to a
medical review board, his state law claims are barred under the IMMA. See Thompson, 900 F.3d
at 424; Ind. Code § 34-18-8-4.
In sum, because Mr. Mercado has waived any argument that summary judgment on his
state law claims is not warranted, and because the claims are barred by the IMMA, Defendants'
Motion for Summary Judgment, [Filing No. 33], is GRANTED as to all of Mr. Mercado's state
law claims against all Defendants.
IV.
CONCLUSION
Based on the foregoing, Defendants’ Motion for Summary Judgment, [33], is
GRANTED. Final judgment shall issue accordingly.

Date: 11/28/2022
Hon. Jane Magnus-Stinson, Judge
‘United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record
Distribution via U.S. Mail to:
Angelito Mercado
Bartholomew County Jail
543 2nd Street
Columbus, IN 47201

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169758. Public record. Not legal advice.