WILFORD v. VIGO COUNTY JAIL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

EVAN WILFORD, )

)

Plaintiff, )

)

v. ) No. 2:21-cv-00016-JMS-MJD

)

JOHN PLASSE Sheriff, )

CHARLIE FUNK Captain, )

CASEY LEE Lt., )

)

Defendants. )

Order Granting Motion for Summary Judgment and Directing Further Proceedings

Evan Wilford filed this civil rights suit alleging that he was subjected to unconstitutional

conditions of confinement while he was incarcerated in the Vigo County Jail during the COVID-

19 pandemic. The defendants have filed a motion for summary judgment. Dkt. 50. For the reasons

explained below, the motion is granted as to the defendants in their individual capacities.

I.

Standard of Review

Parties in a civil dispute may move for summary judgment, which is a way of resolving a

case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no

genuine dispute as to any of the material facts, and the moving party is entitled to judgment as a

matter of law. Id.; Pack v. Middlebury Comm. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021). A

"genuine dispute" exists when a reasonable factfinder could return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those that

might affect the outcome of the suit. Id.

When reviewing a motion for summary judgment, the Court views the record and draws

all reasonable inferences from it in the light most favorable to the nonmoving party. Khungar v.

Access Cmty. Health Network, 985 F.3d 565, 572-73 (7th Cir. 2021). 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 is only required to

consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it is not required to "scour

every inch of the record" for evidence that is potentially relevant. Grant v. Tr. of Ind. Univ., 870

F.3d 562, 573-74 (7th Cir. 2017).

"[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'

which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party may be discharged by

'showing'—that is, pointing out to the district court—that there is an absence of evidence to support

the nonmoving party's case." Id. at 325.

II.

Factual Background

At screening, the Court permitted Mr. Wilford to proceed on Fourteenth Amendment

claims against Sheriff John Plasse, Captain Charlie Funk, and Lt. Casey Lee based on his

allegations that jail staff failed to implement any COVID-19 protections beyond quarantining

newly admitted inmates. Dkt. 15 at 1−2.

A. The Parties

Mr. Wilford was incarcerated in the jail from April 2020 to April 2021 due to a probation

violation. Dkt. 34 at 15.

John Plasse has been the Vigo County Sheriff since January 1, 2019. Dkt. 30-2 at ¶¶ 1−2.

Charles Funk is the Jail Commander. Id. at ¶ 3. Casey Lee is the Jail Matron. Id. at ¶ 4. Commander

Funk and Lt. Lee are responsible for the day-to-day operation of the Jail. Id. at ¶ 5.

B. Precautionary Measures for COVID-19 at the Jail

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.1

Since then, the Vigo County Health Department has been in daily contact with the Vigo County

jail making recommendations about COVID-19 precautions. Dkt. 59-1 at ¶¶ 5, 7. The Vigo County

Health Department's recommendations are based on guidelines from the State Board of Health and

the Centers for Disease Control ("CDC"). Id. at ¶ 8.

Inmates booking into the jail were quarantined for two weeks beginning in March 2020.

Dkt. 30-3 at ¶ 7.

The jail issued masks to inmates attending court hearings in June 2020. Dkt. 30-2 at ¶ 7.

Jail staff began wearing masks in August 2020. Id. at ¶ 8. Masks were given to inmates who were

in quarantine, leaving general population, moving around the facility, and in common areas in

November 2020. Id. at ¶ 10. Mr. Wilford testified that he received a face mask in August 2020 and

began wearing one at all times except when he showered. Dkt. 34 at 38.

1 See Centers for Disease Control and Prevention, "CDC Museum COVID-19 Timeline,"

https://www.cdc.gov/museum/timeline/covid19.html (last visited Jan. 13, 2022).

In December 2020, an inmate who died following a medical episode tested positive for

COVID-19. Dkt. 59-1 at ¶ 19. The Indiana Department of Health ordered that all of the inmates in

the jail be tested following his death, and over 100 inmates tested positive. Id. at ¶¶ 19−23. After

this COVID-19 outbreak, all inmates were required to wear masks. Id. at ¶ 14. Before the outbreak,

inmates were not required to wear masks "because of concerns related to compliance." Id. at ¶ 15.

After the outbreak, the Indiana Department of Health instructed the jail to be locked down.

Dkt. 30-3 at ¶ 17. During the lockdown, inmates were allowed out of their cells for one hour each

day to shower and speak with family by phone or through the kiosk. Id. at ¶ 18. The jail's medical

department spoke to inmates in groups about what a positive COVID-19 test meant and what signs

and symptoms to look for. Id. at ¶¶ 19−21. Jail officers were instructed to contact the medical

department if any inmate complained of COVID-19 symptoms. Id. at 23.

Inmates are provided with cleaning supplies each day, which include a mop, a mop bucket

with a cleaning solution with disinfectant, dust mop, toilet brush, spray bottle, and rags. Dkt. 30-4

at ¶¶ 17−20. Trustees began disinfecting hard surfaces and holding cells in March 2020. Id. at ¶ 21.

More cleaning materials were provided after the December 2020 outbreak. Id. at ¶ 22.

COVID-19 tests were not available at the jail until December 2020, when they were

provided by the Health Department. Dkt. 59-1 at ¶¶ 16−17. COVID-19 vaccines became available

at the jail in March 2021 and have been available to inmates since that time. Id. at ¶¶ 26, 30.

C. Mr. Wilford's Illness and Claims

In November 2020, Mr. Wilford lost his taste of smell and taste and had cold sweats, a

stuffy nose, body aches, and a scratchy throat. Dkt. 34 at 20. In mid-November, he submitted a

request through the jail kiosk to be seen by a nurse and receive a COVID-19 test. Id. at 21.

Someone responded back to him that the jail did not have any COVID-19 tests available and that

Mr. Wilford was "probably just under the weather due to weather change." Id. at 21−23. He

submitted another healthcare request on November 27, and a nurse responded she would see him

during sick call. Id. at 23. The nurse checked his vitals and told him that she could not do anything

about it because there was no cure for COVID-19. Id. at 23−24. He received no medication at that

time. Id. at 24-25. Mr. Wilford experienced COVID-19 symptoms for about two and a half weeks.

Id. at 25.

Mr. Wilford tested positive for COVID-19 during the December 2020 COVID-19

outbreak. Dkt. 30-2 at ¶ 12. After he tested positive, he filed a grievance in the jail's kiosk stating

that the "sheriff and jail commander's neglect of handling COVID-19 virus and their criminal

dismissal of government mandate preventative measures by maintaining an overcrowded facility"

caused him to contract COVID-19. Dkt. 34 at 30. Mr. Wilford testified that he was housed in a

four-man cell, and there were always six or seven men assigned to his cell. Id. at 31. He also

testified that he believed the defendants should have ensured inmates had masks as of March 2020

and should have enforced mask rules for staff and inmates. Id. at 38−41.

Mr. Wilford testified that he sued Sheriff Plasse, Commander Funk, and Lt. Lee because

"they're the ones in charge" and should have issued more COVID-19-related rules in light of the

state of emergency. Id. at 38, 47. Mr. Wilford has never met Lt. Lee. Id. at 46.

In April 2021, Mr. Wilford was diagnosed with diabetes, which he attributes to contracting

COVID-19 due to a lack of family history. Id. at 35-38.

III.

Discussion

A. Fourteenth Amendment Standard

Because Mr. Wilford was at all relevant times a detainee being held on a probation

violation, the parties analyzed his conditions-of-confinement claim under the Fourteenth

Amendment's Due Process Clause. Hardeman v. Curran, 933 F.3d 816, 821−22 (7th Cir. 2019).2

To prove a conditions-of-confinement claim, the Court applies an objective standard. Id. at 823.

That is, Mr. Wilford must show "that the conditions in [the jail] posed an objectively serious threat

to his health; that the officers' response was objectively unreasonable under the circumstances; and

that they acted purposely, knowingly, or recklessly with respect to the consequences of their

actions." Mays v. Emanuele, 853 F. App'x 25, 27 (7th Cir. 2021) (citing Hardeman, 933 F.3d at

823, 827 and Miranda, 900 F.3d at 353−54). The officers' response is objectively unreasonable if

it is "not rationally related to a legitimate nonpunitive governmental purpose" or is "excessive in

relation to that purpose." Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015) (cleaned up). "The

objective-reasonableness standard requires that we focus on the totality of the circumstances in the

case and gauge objectively—without regard to any subjective belief held by the individual—

2 The Court understood Mr. Wilford to be a pretrial detainee, and it was not until the summary judgment

materials were filed that it became clear he was in the jail pursuant to a pending probation violation. In

Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018), the Seventh Circuit clarified that pretrial

detainees' medical care claims are analyzed under the objective unreasonableness inquiry identified in

Kingsley v. Hendrickson, 576 U.S. 389 (2015). Since Miranda, the Seventh Circuit has not decided whether

an individual held on a pending probation violation "fits within the Eighth Amendment or the Fourteenth

Amendment framework." Stockton v. Milwaukee Co., 44 F.4th 605, 614 n.3 (7th Cir. 2022). Because the

parties present the claim under the Fourteenth Amendment framework, the Court does the same.

whether the response was reasonable." McGee v. Parsano, 55 F.4th 563, 569 (7th Cir. 2022)

(cleaned up).

B. Application of the Standard to the Conditions in the Vigo County Jail

A jury could find that the COVID-19 virus created a serious risk of harm to detainees'

health, and that the general risk of exposure is exacerbated by the close quarters that detainees are

subjected to. See Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020) (finding that "the objective

prong is easily satisfied" as to inmates' claims under Eighth Amendment challenging conditions

of confinement in federal prison with dormitory housing at the start of the pandemic).

Thus, the Court must decide if the defendants responded reasonably to the risk, or whether

they acted recklessly. The defendants framed the relevant inquiry as "whether Plasse, Funk and

Lee were personally involved in creating conditions that caused Wilford to test positive for and

contract COVID-19." Dkt. 51 at 6. Such framing is appropriate because "[i]ndividual liability

under § 1983 … requires personal involvement in the alleged constitutional deprivation." Colbert

v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (internal quotation omitted). "[S]upervisors

are responsible for their own acts but not for those of subordinates, or for failing to ensure that

subordinates carry out their tasks correctly." Horshaw v. Casper, 910 F.3d 1027, 1029 (7th Cir.

2018); see also Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002) ("Under § 1983, there is no

respondeat superior liability.").

First, there is no evidence that Sheriff Plasse was involved in day-to-day jail operations.

That task, he attested, was left to Commander Funk and Lt. Lee. Mr. Wilford argues that Indiana

Code § 36-2-13-5(a)(7) proves that Sheriff Plasse was personally responsible because it states that

"the sheriff shall take care of the county jail and the prisoners there." Dkt. 57 at 4. Plaintiffs have

relied on this statute when bringing state law negligence claims against a sheriff. See, e.g., Trout

v. Buie, 653 N.E.2d 1002, 1008 (Ind Ct. App. 1995); Perkins v. Lawson, 312 F.3d 872, 876 (7th

Cir. 2002) (citing Trout). And the Seventh Circuit has observed that this statute makes it plain that

the sheriff is an appropriate defendant when bringing a claim under Monell v. Department of Social

Services, 436 U.S. 658 (1978) because he "serves as the county's official decision-maker in matters

involving the county jail." Luck v. Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999). But this statute

does not demonstrate that Sheriff Plasse was personally involved in the actions at issue in this case,

and there are no facts that suggest his personal involvement. Thus, Sheriff Plasse is entitled to

summary judgment as to a Fourteenth Amendment claim against him in his individual capacity.

Commander Funk and Lt. Lee were responsible for day-to-day jail operations. There is no

direct evidence in the record that they personally interacted with Mr. Wilford with respect to his

placement in an overcrowded cell, distributing masks, procuring COVID-19 tests, or coordinating

his medical care when he became symptomatic in November. Still, Mr. Wilford's submission of a

grievance complaining about jail administrators' failure to adhere to COVID-19 protocols and the

nature of Commander Funk and Lt. Lee's roles in the jail provide some evidence that they were

responsible for maintaining constitutional conditions of confinement in the jail. See, e.g., Gray v.

Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016) (holding that the warden could be personally liable

for cell conditions because he "not only knew about the problems but was personally responsible

for changing prison policies so that they would be addressed"). Thus, the Court declines to

determine the merits of Mr. Wilford's underlying claim and proceeds to the defendants' qualified

immunity defense.

C. Qualified Immunity

To the extent that the defendants had personal involvement in the conditions that resulted

in Mr. Wilford contracting COVID-19, the Court concludes they are entitled to qualified

immunity. "Qualified immunity is a doctrine that protects government officials from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Leiser v. Kloth, 933 F.3d

696, 701 (7th Cir. 2019) (cleaned up). Once a defendant raises qualified immunity as a defense,

the burden shifts to the plaintiff to defeat it by showing "two elements: first, that the facts show a

violation of a constitutional right, and second, that the constitutional right was clearly established

at the time of the alleged violation." Id. (cleaned up). "'If either inquiry is answered in the negative,

the defendant official' is protected by qualified immunity." Koh v. Ustich, 933 F.3d 836, 844 (7th

Cir. 2019) (quoting Reed v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018) (emphasis in original)).

The Court finds the second element dispositive. "A clearly established right is one that is

sufficiently clear that every reasonable official would have understood that what he is doing

violates that right. . . . Put simply, qualified immunity protects all but the plainly incompetent or

those who knowingly violate the law." Mullenix v. Luna, 577 U.S. 7, 11−12 (2015) (cleaned up).

Courts cannot define "clearly established law at a high level of generality" but rather must assess

"whether the violative nature of particular conduct is clearly established." Id. (cleaned up). The

doctrine of qualified immunity "gives government officials breathing room to make reasonable but

mistaken judgments[.]" Carroll v. Carman, 574 U.S. 13, 17 (2014).

It is clearly established that prison officials may not "be deliberately indifferent to the

exposure of inmates to a serious, communicable disease" under the Eighth Amendment, Helling

v. McKinney, 509 U.S. 25, 33 (1993), and that the right to safe conditions extends to pretrial

detainees under the Fourteenth Amendment, Hardeman, 933 F.3d at 821−22. And although

COVID-19 was a new virus, the duty to protect inmates from needless exposure to a serious illness

"need not be litigated and then established disease by disease [.]" Estate of Clark v. Walker, 865

F.3d 544, 553 (7th Cir. 2017).

But the issue is whether Captain Funk and Lt. Lee were on notice that their particular

conduct—placing detainees in overcrowded cells, failing to implement a universal mask rule

before the December 2020 COVID-19 outbreak, and failing to procure COVID-19 tests—violated

Mr. Wilford's Fourteenth Amendment rights. Mr. Wilford has cited no case that suggests as much,3

and the Court can find none. Instead, many courts have granted qualified immunity to jail and

prison administrators given the evolving nature of the virus and the related recommendations for

keeping incarcerated individuals safe. See, e.g., Jones v. Burt, Case No. 1:21-cv-41, 2022 WL

4244298, *5 (W.D. Mich. July 15, 2022) (granting qualified immunity on claim related to failure

3 Mr. Wilford cites Ind. Code § 36-2-13-5(a)(7) and Weatherholt v. Spencer County¸639 N.E.2d

354, 356 (Ind. Ct. App. 1994) for the proposition that the sheriff has a duty to administer the jail

in a manner that ensures the safety of the inmates, and Rhodes v. Chapman, 542 U.S. 337, 347

(1981), for the proposition that inmates' safety includes humane conditions which provide for

their basic human needs. Dkt. 57 at 7. While defining the legal standard at a "high level of

generality," these cases are not factually similar to the conduct Mr. Wilford complains about

here.

to social distance because "[n]o court has found that the inability of prison officials to ensure social

distancing occurs during the COVID-19 pandemic, standing by itself, and in light of other

measures . . . such as . . . setting up isolation areas for known COVID-positive prisoners, violates

the Eighth Amendment."); Ross v. Russell, Case No. 7:20-cv-000774, 2022 WL 767093, *14

(W.D. Va., Mar. 14, 2022) (finding jail officials were entitled to qualified immunity because, given

the ongoing and changing guidance from health officials as to a novel virus, "neither the policies

or occasional lapses [in enforcing the policies] were clearly insufficient to protect prisoners").

Qualified immunity is especially appropriate because Commander Funk and Lt. Lee are

correctional professionals, not health professionals. The undisputed evidence is that the COVID-

19 protective measures they implemented were at the recommendation of the Vigo County Health

Department. Dkts. 30-2; 30-3; and 58-1. Because courts have "long recognized that correctional

institutions typically engage in the division of labor between medical professionals and other

security and administrative staff," it was reasonable for Commander Funk and Lt. Lee to defer to

the health department for guidance on handling COVID-19 within the jail. McGee, 55 F.4th at 569,

573 (cleaned up) (upholding grant of qualified immunity for jail officials in medical care context

because Seventh Circuit precedent "dictates that corrections officers are not constitutionally

obligated to override the judgment of medical professionals unless they have reason to know that

an inmate is receiving inadequate treatment"); Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir.

2019) (holding that plaintiff could not prove the subjective element of deliberate indifference claim

"because the defendants are all non-medical officials who reasonably relied on the judgment of

medical professionals").

Accordingly, Commander Funk and Lt. Lee are entitled to qualified immunity, and

summary judgment is granted as to all claims against them in their individual capacity.

IV.

Conclusion and Further Proceedings

The defendants' motion for summary judgment, dkt. [50], is granted. Sheriff Plasse is

entitled to summary judgment because there was no evidence in the record that he was personally

involved in the conditions of confinement at the Vigo County Jail about which Mr. Wilford

complained. Commander Funk and Lt. Lee are entitled to qualified immunity. All claims against

the defendants in their individual capacities are dismissed.

In the course of ruling on the instant motion, the Court has reviewed and reconsidered Mr.

Wilford's amended complaint, dkt. [14], and this Court's order screening his amended complaint,

dkt. [15]. The Court's screening order did not specify whether Mr. Wilford's Fourteenth

Amendment claims would proceed against the defendants in their individual or official capacities.

Construing Mr. Wilford's amended complaint liberally, he has stated a policy-or-practice claim

pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). See Clark v. Henninger,

221 F.3d 1338, 2000 WL 968044, *5 (7th Cir. 2000) (unpublished) (noting that, when construing

a pro se complaint that does not specify the capacity in which a defendant is sued, an official

capacity claim "will be presumed when then 'the indicia of an official policy or custom are present

in the complaint'") (quoting Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991)). The Court

also reconsiders its screening order to the extent that Mr. Wilford also pleaded a state law

negligence claim in his amended complaint.

The magistrate judge 1s requested to set this matter for a status conference to discuss further

proceedings with respect to Mr. Wilford’s Monell claim and state law negligence claims, including

whether discovery needs to be reopened and deadlines for a briefing schedule should the parties

wish to file dispositive motions with respect to these claims. The magistrate judge is also requested

discuss the possibility of an agreed resolution with the parties.

IT IS SO ORDERED.

Date: 2/3/2023 ;

Hon. Jane Magnus-Stinson, Judge

‘United States District Court

Southern District of Indiana

Distribution:

David P. Friedrich

WILKINSON GOELLER MODESITT WILKINSON AND DRUMMY

dpfriedrich@wilkinsonlaw.com

William Russell Morris, Jr.

LAW OFFICE OF WILLIAM R. MORRIS, JR.

wimorris.attorney@gmail.com

Magistrate Judge Dinsmore

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