MARTIN v. VAUGHN

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ROBERT MARTIN, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00391-JPH-MJD

)

B. VAUGHN Sergeant; in his individual )

capacity as Sergeant, 1 )

)

)

Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Robert Martin, an Indiana prisoner, filed this civil rights action

while he was incarcerated at Wabash Valley Correctional Facility. Dkt. 6 at 1.

Mr. Martin brings a federal claim alleging excessive force in violation of the

Eighth Amendment and a state claim for intentional infliction of emotional

distress. Id. at 3, 6. Sergeant Vaughn has filed a motion for summary judgment.

For the reasons that follow, that motion, dkt. [40], is GRANTED.

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,

1 The excessive force and intentional infliction of emotional distress claims proceed

against Sergeant Vaughn in his individual capacity. Dkt. 6 at 5 (Screening Order

dismissing official capacity claims against all defendants). Consistent with the Screening

Order, the clerk is directed to remove the official capacity language from the caption on

the docket.

and the moving party is entitled to judgment as a matter of law. Id.; Pack v.

Middlebury Cmty. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021); see also Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (noting that a court must

grant a motion for summary judgment if it appears that no reasonable trier of

fact could find in favor of the nonmovant on the basis of the designated

admissible evidence). A "genuine dispute" exists when a reasonable factfinder

could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

"Material facts" are those that might affect the outcome of the suit. Id.

"At summary judgment a party 'must go beyond the pleadings and support

its contentions with proper documentary evidence.'" Nelson v. Stevens, 861 F.

App'x 667, 670 (7th Cir. 2021) (quoting Beardsall v. CVS Pharm., Inc., 953 F.3d

969, 972 (7th Cir. 2020) and (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). "[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., 477 U.S. at 322-23). Additionally, "[a] party opposing a summary

judgment motion must . . . file and serve a response brief and any evidence . . .

that the party relies on to oppose the motion. The response must . . . identif[y]

the potentially determinative facts and factual disputes that the party contends

demonstrate a dispute of fact precluding summary judgment." See S.D. Ind. L.R.

56-1.

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 fact-

finder. 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. Trs. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017).

Further, "where a reliable videotape clearly captures an event in dispute

and blatantly contradicts one party's version of the event so that no reasonable

jury could credit that party's story, a court should not adopt that party's version

of the facts for the purpose of ruling on a motion for summary judgment."

McCottrell v. White, 933 F.3d 651, 661 (7th Cir. 2019) (citing Scott v. Harris, 550

U.S. 372, 380-81 (2007)). In this case, the Court had the benefit of reviewing in

camera a video recording of the incident that forms the basis for Mr. Martin's

claims. See dkt. 61. The video evidence has been credited when it directly

conflicts with Mr. Martin's testimony.

II. Factual Background

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.2

A. Mr. Martin

Robert Martin was incarcerated at Wabash Valley Correctional Facility

during all relevant events. Dkt. 40-1 ¶ 3. Mr. Martin is a Type One diabetic. Dkt.

40-3 at 14. He wears an insulin pump and receives insulin shots. Dkt. 40-1 ¶ 8;

dkt. 40-3 at 15. Other than the incident that is the basis for his claims in this

case, Mr. Martin "ha[s] not experienced any diabetic episodes – minor or major –

while . . . at Wabash Valley." Dkt. 40-3 at 16-17.

On August 14, 2019, Mr. Martin had a diabetic medical emergency. Dkt.

40-1 ¶ 5; dkt. 40-3 at 17. Mr. Martin was "incapacitated," "was not himself,"

"did not know what was going on and does not remember anything," and was "in

a complete stupor" until Sergeant Vaughn sprayed him with Oleoresin Capsicum

("OC spray"), commonly known and referred to as pepper spray. Dkt. 52 at 3-5,

7-9; dkt. 40-3 at 17-18, 22-23.

Before August 14, 2019, Mr. Martin had not experienced any negative

incidents with Sergeant Vaughn. Dkt. 52 at 3; dkt. 40-3 at 19.

B. Sergeant Vaughn

2 Mr. Martin cites David Cruz's Witness Statement and a medical report as evidence

supporting his position. Dkt. 52. However, Mr. Martin did not attach this documentation

to his response in opposition, or his complaint, and this documentation is not otherwise

in the record. Id.; dkt. 1. Therefore, the Court cannot consider this evidence. See Grant,

870 F.3d at 573-74 (the Court is only required to consider the materials cited by the

parties, it is not required to "scour every inch of the record" for evidence that is

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

Sergeant Vaughn is employed by the IDOC at Wabash Valley. Dkt. 40-1 ¶¶

1-2. In March 2019, Sergeant Vaughn was trained on the use of OC spray. Id. ¶

20. Sergeant Vaughn believed that he had positive rapport with Mr. Martin. Id.

¶¶ 7-8; dkt. 40-3 at 19. He knew that Mr. Martin was a diabetic and wore an

insulin pump but had never witnessed Mr. Martin having a diabetic episode. Id.

On August 14, 2019, prison staff informed Sergeant Vaughn that Mr. Martin

"was behaving strangely" and that he may need medical attention. Dkt. 40-1 ¶

5. Though he was not assigned to Mr. Martin's unit, Sergeant Vaughn responded

to the situation. Id.

C. The Incident

On August 14, 2019, Sergeant Vaughn arrived at Mr. Martin's cell and

observed him "speaking gibberish and not making sense." Id. ¶ 9. After medical

staff arrived and informed Sergeant Vaughn that Mr. Martin's diabetic condition

needed immediate medical attention, Sergeant Vaughn attempted to transport

Mr. Martin for medical treatment without using restraints, but Mr. Martin

"charged at the door," so Sergeant Vaughn closed the cell door. Id. ¶¶ 10-11.

Subsequently, Mr. Martin began punching himself in the face and head butting

the cell door. Id. ¶ 14.

Sergeant Vaughn believed that Mr. Martin "posed a danger to himself and

others and should be in mechanical wrist restraints" to be transported for

medical treatment. Id. ¶¶ 11-12, 14. For several minutes, Sergeant Vaughn

attempted to console Mr. Martin and repeatedly ordered Mr. Martin to submit to

restraints. Id. ¶¶ 12-13, 15. When Mr. Martin refused all orders to comply,

Sergeant Vaughn sprayed Mr. Martin with OC spray. Id. ¶¶ 15-16. Mr. Martin

then submitted to the restraints and received medical treatment and a

decontamination shower. Id. ¶¶ 17-18. Subsequently, Sergeant Vaughn

prepared an Incident Report documenting this encounter. Id. ¶ 21 (citing dkt.

40-2).

Mr. Martin did not submit a Notice of Tort Claim regarding this incident.

Dkt. 40-3 at 28.

D. Disputed Facts

Mr. Martin contends that there are genuine issues of material fact

including: 1) whether Mr. Martin charged at the door, punched himself, or head

butted the cell door; 2) how much OC spray Sergeant Vaughn used on him; 3)

whether Sergeant Vaughn attempted to console him and should have used

additional non-forceful means to console him before spraying him; and 4)

whether the filing of this lawsuit satisfied the Indiana Tort Claims Act's ("ITCA")

notice requirements.3 Dkt. 52 at 4-5, 8-10. The Court will address these disputed

facts in its discussion.

3 Mr. Martin disputes additional facts that are not relevant to his claims of excessive

force and intentional infliction of emotional distress. Specifically, he argues that medical

staff should have responded to his request for medical assistance in a more expedient

manner; that Sergeant Vaughn does not have medical training; and that Sergeant

Vaughn's account in the incident report and his reasons for drafting the report are

invalid. Dkt. 52 at 2-9. Construed liberally, these facts relate to the failure to provide

medical assistance, issuance of a false conduct report, and retaliation. However, these

new theories of liability were not previously identified, and in this situation the Court

declines to allow Mr. Martin to amend his pleadings in his response to a motion for

summary judgment. Dkt. 6 at 6 (stating that excessive force and intentional infliction of

emotional distress are Mr. Martin's sole claims that shall proceed); Id. at 7 (giving Mr.

Martin time to identify any additional claims that were alleged in the complaint but not

III. Discussion

Sergeant Vaughn argues that he is entitled to summary judgment on Mr.

Martin's excessive force claim because the force was "necessary and used in a

good faith effort to securely remove Mr. Martin from his cell" to provide

emergency medical treatment. Dkt. 41 at 2, 9-11. Alternatively, Sergeant Vaughn

asserts that he is entitled to qualified immunity on Mr. Martin's excessive force

claims. Id. at 11-14. Sergeant Vaughn also contends that summary judgment is

appropriate on Mr. Martin's state law claim because Mr. Martin did not submit

notice of his tort claim prior to filing this lawsuit and because Sergeant Vaughn

is immune under ITCA.4 Id.

Mr. Martin contends that there are genuine issues of material fact as to

whether Sergeant Vaughn violated his Eighth Amendment rights, namely that:

1) Mr. Martin did not charge the door, punch himself, or head butt the cell door;

2) Sergeant Vaughn sprayed an entire can of OC spray on him; 3) Sergeant

Vaughn did not attempt to console him and should have explored alternative

means to console Mr. Martin before spraying him; and 4) he sustained chemical

burns and endured lingering pain for a week. Dkt. 52 at 4-5, 10. Mr. Martin also

argues that Sergeant Vaughn had notice of his tort claim when he filed this

lawsuit. Id. at 10.

identified in the screening Order); see also Colbert v. City of Chi., 851 F.3d 649, 656 (7th

Cir. 2017).

4 Consistent with the Screening Order, these claims proceed against Sergeant Vaughn

in his individual capacity. Dkt. 6 at 5.

In reply, Sergeant Vaughn asserts that he is entitled to summary judgment

on Mr. Martin's excessive force claims because Mr. Martin has not designated

evidence that creates a genuine issue of material fact.5 Dkt. 53 at 4. Regarding

the state law claim, Sergeant Vaughn argues that the act of filing a lawsuit does

not fulfill ITCA's notice requirements. Id. at 6-7.

A. Eighth Amendment

The "unnecessary and wanton infliction of pain . . . constitutes cruel and

unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers,

475 U.S. 312, 319 (1986) (citation and quotation marks omitted). "[T]he question

whether the measure taken inflicted unnecessary and wanton pain and suffering

ultimately turns on whether force was applied in a good faith effort to maintain

or restore discipline or maliciously and sadistically for the very purpose of

causing harm" Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citation and quotation

marks omitted); see Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). To

evaluate this question, the court weighs "several factors, such as 'the need for

the application of the force, the amount of force applied, the threat an officer

5 The Court reviewed Mr. Martin's complaint and response in opposition and finds that

these filings are verified because they are signed under penalty of perjury. Beal v. Beller,

847 F.3d 897, 901 (7th Cir. 2017) (stating that "a verified complaint is not just a

pleading; it is also the equivalent of an affidavit for purposes of summary judgment,

because it contains factual allegations that if included in an affidavit or deposition would

be considered evidence, and not merely assertion."); Dale v. Lappin, 376 F.3d 652, 655

(7th Cir. 2004) (concluding that a "verified response constitutes competent evidence to

rebut the defendants' motion for summary judgment"). Thus, these filings operate as

affidavits for purposes of summary judgment to the extent they include statements

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).

As explained in this Order, however, Mr. Martin's testimony does not create a material

dispute of fact sufficient to overcome the motion for summary judgment.

reasonably perceived, the effort made to temper the severity of the force used,

and the extent of the injury that force caused to an inmate.'" Stockton v.

Milwaukee Cnty., 44 F.4th 605, 619 (7th Cir. 2022) (quoting Fillmore v. Page,

358 F.3d 496, 504 (7th Cir. 2004)). "A de minimus application of force is

insufficient to support an Eighth Amendment excessive force claim; instead, the

force must be repugnant to the conscience of mankind." Stockton, 44 F.4th at

619 (internal quotation and citation omitted). Additionally, to survive summary

judgment, Mr. Martin "must present evidence supporting 'a reliable inference of

wantonness in the infliction of pain.'" Id. (citing Whitley, 475 U.S. at 322).

1. The need for the use of force

The undisputed summary judgment record reflects that Segreant Vaughn

reasonably believed that force was necessary because Mr. Martin's conduct

endangered Mr. Martin, staff members, and other prisoners. Dkt. 41 at 9-10

(citing 40-1 ¶ 12). Specifically, medical staff told him that Mr. Martin needed

emergency medical care for his diabetes; he observed Mr. Martin speaking

gibberish, hitting himself in face, head butting the cell door, and charging at the

door; and that Mr. Martin refused to comply with his verbal orders. Dkt. 41 at

9-10 (citing dkt. 40-1 ¶¶ 11, 13-15). In response, Mr. Martin contends that his

lack of bruises and injuries contradict Sergeant Vaughn's assertion that he hit

himself or head butted the cell door. Dkt. 52 at 7. He further argues that the

video undermines Sergeant Vaughn's testimony that he charged out the cell door

because the video does not show him in the dayroom. Id. at 4.

The Court first evaluates the need for the application of force, considering

"the threat to the safety of the officers and the threat to the maintenance of good

order and discipline in the institution." Santiago v. Walls, 599 F.3d, 749, 757

(7th Cir. 2010). Mr. Martin has not designated evidence from which a jury could

find that Sergeant Vaughn acted in bad faith. Anderson, 477 U.S. at 248 (noting

that summary judgment is appropriate only when no reasonable jury could find

for the non-moving party). Mr. Martin's testimony that he did not sustain any

bruises or injuries does not contradict Sergeant Vaughn's claim that he saw Mr.

Martin hitting himself and head butting the cell door. Next, the video does not

undermine Sergeant Vaughn's account of what happened. Sergeant Vaughn's

affidavit states that Mr. Martin "charged at the door," not that Mr. Martin ran

outside of his cell. Dkt. 40-1 at ¶ 11 (Sergeant Vaughn stating that "I attempted

to transport Mr. Martin without the use of mechanical restraints and opened his

cell door, but he charged at the door and the door was closed again.") (emphasis

added). The Court also reviewed the video in camera and finds that the video

corroborates Sergeant Vaughn's testimony. Specifically, the video shows medical

staff stepping back abruptly and Sergeant Vaughn moving to secure Mr. Martin's

cell door as if he needed to prevent Mr. Martin from fleeing. Dkt. 61.

Moreover, Mr. Martin's assertion that force was not necessary to restore

order is speculation because he does not recall any details of the incident until

after Sergeant Vaughn sprayed him. Dkt. 52 at 3-5, 7-9; dkt. 40-3 at 17-18, 21-

23 (Mr. Martin stating in his deposition that he does not know whether he hit

himself or head butted the cell door). This is insufficient to defeat summary

judgment. Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) ("It is well-

settled that speculation may not be used to manufacture a genuine issue of

fact.") (citations omitted); see also Borcky v. Maytag Corp., 248 F.3d 691, 695

(7th Cir. 2001) ("The mere existence of some alleged factual dispute will not

defeat an otherwise properly supported motion for summary judgment . . . .

Speculation will not suffice.").

Accordingly, the undisputed facts demonstrate that the use of force was

warranted because Mr. Martin was combative and refused to comply with

Sergeant Vaughn's orders. Dkt. 40-1 ¶¶ 11, 13-15.

2. Efforts to temper the severity of the force

Sergeant Vaughn testified that he attempted to get Mr. Martin medical

treatment without using restraints, but those efforts failed because Mr. Martin

charged the door. Dkt. 41 at 9 (citing dkt. 40-1 ¶ 11). Sergeant Vaughn further

testified that he tried to console Mr. Martin and to convince him to submit to

restraints for several minutes before spraying him. Dkt. 41 at 9 (citing dkt. 40-1

¶ 12). Mr. Martin asserts that Sergeant Vaughn did not attempt to console him

but instead ordered him to submit to restraints. Dkt. 52 at 8. Mr. Martin further

states that Sergeant Vaughn should have tried harder to console him because

he knew about his diabetic condition and that Mr. Martin was not lucid. Id. at

8-9.

Mr. Martin's assertions do not create a genuine issue of material fact. First,

Mr. Martin does not know what happened before Sergeant Vaughn sprayed him.

Id. at 3-5, 7-9; dkt. 40-3 at 17-18, 21-23. Second, Sergeant Vaughn's testimony

that he ordered Mr. Martin to submit to restraints does not negate or contradict

his statement that he attempted to console Mr. Martin. The designated evidence

therefore shows that Sergeant Vaughn gave Mr. Martin verbal orders after his

efforts to console him failed. Dkt. 40-1 ¶ 13. Third, the video is consistent with

Sergeant Vaughn's testimony—it shows him standing outside of Mr. Martin's cell

and attempting to talk to him for several minutes before he sprayed him. Dkt.

61. Fourth, medical staff told Sergeant Vaughn that Mr. Martin needed

emergency medical care for his diabetic condition, so Sergeant Vaughn was

justified in believing that expediency was necessary when Mr. Martin refused to

comply with his verbal instructions. Dkt. 40-1 ¶ 10. Fifth, Mr. Martin conceded

that he does not know whether the "outcome would have been different" had

Sergeant Vaughn offered him a drink or snack in lieu of spraying him with OC.

Dkt. 40-3 at 23 Accordingly, the designated evidence shows that Sergeant

Vaughn made appropriate efforts to temper the severity of force used.

3. Amount of force used

Sergeant Vaughn testified that he used the least amount of force necessary

to gain Mr. Martin's compliance by spraying Mr. Martin with a one second burst

of OC spray. Dkt. 41 at 10 (citing dkt. 40-1 ¶ 16); dkt. 53 at 4. Mr. Martin asserts

that Sergeant Vaughn emptied an entire can of OC spray on him, that he was

covered from head to toe, that his bedding was soaked and had to be thrown

away, and that his wall was "stained solid orange." Dkt. 52 at 5, 10.

The Eighth Amendment permits "the use of chemical agents, including

mace and tear gas, 'when reasonably necessary to prevent riots or escape or to

subdue recalcitrant prisoners' . . . or to compel compliance with orders." Lewis

v. Downey, 581 F.3d 467, 479 (7th Cir. 2009). Generally, the officer must give

"adequate warning" before using a chemical agent and the use must not be

"exaggerated or excessive." Id.

Here, there is no material dispute of fact because the video contradicts Mr.

Martin's statement that Sergeant Vaughn sprayed an entire can of OC Spray on

him. Dkt. 61. Specifically, the video depicts: 1) that another officer handed the

OC Spray to Sergeant Vaughn who shook the can away from the opening of Mr.

Martin's cell; 2) that Sergeant Vaughn bent down at the opening of Mr. Martin

cell and briefly administered approximately a one-second shot of OC Spray in

Mr. Martin's cell; and 3) that the other officer immediately shut Mr. Martin's cell

door and Sergeant Vaughn walked away from the cell door. Id. Shortly, thereafter

Mr. Martin submitted to restraints and the officers escorted him from the cell for

medical treatment and a decontamination shower. Id.; see also dkt. 41 at 5-6;

dkt. 52 at 9.

The evidence supported by the uncontradicted video evidence is that

Sergeant Vaughn's deployed a one-second burst of OC spray. This use of force

was proportional to Mr. Martin's need for emergency medical care, combative

conduct, and repeated refusal to obey Sergeant Vaughn's verbal orders.

McCottrell, 933 F.3d at 661 ("[W]here a reliable videotape clearly captures an

event in dispute and blatantly contradicts one party's version of the event so that

no reasonable jury could credit that party's story, a court should not adopt that

party's version of the facts for the purpose of ruling on a motion for summary

judgment."); see also Burton v. Ruzicki, 258 F. App'x 882, 885 (7th Cir. 2007)

(holding that the officers were justified in pepper spraying a prisoner even when

the prisoner did not "hit or resist" but the prisoner repeatedly refused to obey

orders); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) (reasoning that if an

inmate "cannot be persuaded to obey [an] order, some means must be used to

compel compliance" because discipline in a correctional institution is "essential

if the prison is to function"). Accordingly, no reasonable jury could conclude that

a one-second burst of OC spray under these circumstances is "repugnant to the

conscience of mankind." Stockton, 44 F.4th at 619 (internal quotation and

citation omitted).

4. Extent of the injury

Mr. Martin testified that the OC spray burned him and caused him to

experience lingering pain for a week. Dkt. 52 at 5, 10; dkt. 40-3 at 28-29.

Sergeant Vaughn disputes Mr. Martin's claim that he was injured and argues

that any pain Mr. Martin suffered is not actionable because it was the result of

the application of a reasonable amount of force. See dkt. 41 at 6; 10-11; dkt. 53

at 4. Viewing the evidence most favorably to Mr. Martin, the Court does not

doubt that Mr. Martin experienced pain and discomfort. But the fact of such

injury and corresponding pain from a single burst of OC spray does not establish

that Sergeant Vaughn used excessive force. Stone v. Couch, No. 1:19-cv-01193-

TWP-DML, 2021 U.S. Dist. LEXIS 177289, at *14-15 (S.D. Ind. Sept. 17, 2021)

(noting that courts routinely denied excessive force claims where the prisoner

claims that the force was excessive because he experienced a lingering "painful

burning sensation," and "shortness of breath, difficulty in breathing, nausea,

and tightness in the chest" due to pepper spray or OC spray because these

injuries are minor medical conditions). Mr. Martin has not designated evidence

supporting "a reliable inference of wantonness in the infliction of pain." Whitley,

475 U.S. at 322.

Considering all the factors discussed above, no reasonable jury could

conclude that Sergeant Vaughn deployed the single, one-second burst of OC

spray to inflict unnecessary and wanton pain and suffering. See Hudson, 503

U.S. at 6; Stockton, 44 F.4th at 619 (setting forth five factors: the need for the

application of the force, the amount of force applied, the threat an officer

reasonably perceived, the effort made to temper the severity of the force used,

and the extent of the injury that force caused to an inmate). Instead, the

designated evidence shows that the OC spray was applied in a good faith effort

to gain Mr. Martin's compliance and to allow the provision of necessary

emergency medical services.

In the absence of any evidence that Sergeant Vaughn used "excessive

force" that is "repugnant to the conscience of mankind," Stockton, 44 F.4th at

619, summary judgment in favor of the defendant is appropriate on Mr. Martin's

Eighth Amendment claim. Reed v. Brex, Inc., 8 F.4th 569, 578 (7th Cir. 2021)

(citing Beardsall, 953 F.3d at 973) ("Summary judgment is the proverbial put up

or shut up moment in a lawsuit, when a party must show what evidence it has

that would convince a trier of fact to accept its version of events.").6

B. Intentional Infliction of Emotional Distress

Sergeant Vaughn is entitled to summary judgment on Mr. Martin's state

law claim of intentional infliction of emotional distress because Mr. Martin did

not submit notice of his tort claim as required by the ITCA. Dkt. 41 at 14-15. Mr.

Martin asserts that he provided sufficient notice when he filed this civil rights

action and paid the filing fee. Dkt. 52 at 10. Sergeant Vaughn counters that the

mere filing of a lawsuit is insufficient to provide notice, and that Mr. Martin

conceded in his deposition that he did not file a notice of his tort claim. Dkt. 53

at 6-7 (citing dkt. 40-3 at 28).

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." Murphy

v. Ind. State Univ., 153 N.E.3d 311, 317 (Ind. Ct. App. 2020) (citing Ind. Code §

34-13-3-10). The notice requirement also applies an individual government

employee acting in the scope of his employment. Lewis v. Kunz, No. 1:16-cv-

2759-TWP-DLP, 2018 U.S. Dist. LEXIS 116365, at *16-21 (S.D. Ind. July 10,

2018) (holding that defendants were entitled to summary judgment on a

negligence claim because ITCA's notice requirement applies to government

employees sued in their individual capacities when the underlying conduct that

perpetuated the suit occurred within the scope of their employment).

6 Because Sergeant Vaughn received summary judgment in his favor on Mr. Martin's

Eighth Amendment claim, the Court need not address whether he is entitled to the

defense of qualified immunity. See dkt. 41 at 11-14.

The notice "must describe in a short and plain statement the facts on

which the claim is based," including "the circumstances which brought

about the loss, the extent of the loss, the time and place the loss occurred, the

names of all persons involved if known, the amount of the damages sought, and

the residence of the person making the claim at the time of the loss and at the

time of filing the notice," Ind. Code § 34-13-3-10, and must be in writing and

delivered in person or by registered or certified mail, Id. § 34-13-3-12. "The notice

provision [of the ITCA] is . . . a procedural precedent which must be fulfilled

before filing suit." Weaver v. Elkhart Cmty. Sch. Corp., 95 N.E.3d 97, 101 (Ind.

Ct. App. 2018).

"Substantial compliance with the [ITCA's] notice requirements is sufficient

when the purpose of the notice requirement is satisfied." Schoettmer v. Wright,

992 N.E.2d 702, 707 (Ind. 2013). "The purpose of the Tort Claims Act's notice

requirements is to provide the political subdivision the opportunity to investigate

the facts surrounding an accident so that it may determine its liability and

prepare a defense." Murphy, 153 N.E.3d at 318 (cleaned up). In general, a notice

that: (1) is filed within the 180-day period, (2) informs the governmental entity of

the claimant's intent to make a claim, and (3) contains sufficient information

which reasonably affords the governmental entity an opportunity to promptly

investigate the claim, satisfies the purpose of the statute and will be held to

substantially comply with the Tort Claims Act. Id.

Here, Mr. Martin does not dispute that he did not submit notice of his tort

claim prior to the filing of this lawsuit. Dkt. 40-3 at 28. Rather, he argues that

his lawsuit is sufficient notice to Sergeant Vaughn. Dkt. 52 at 10. But "[t]he

purpose of filing a notice of tort claim is to provide the governmental entity with

an opportunity to investigate official misconduct before the plaintiff files a

lawsuit." Goff v. Bourbeau, No. 2:20-cv-00019-JPH-MJD, 2022 U.S. Dist. LEXIS

179750, at *15 (S.D. Ind. Sept. 30, 2022) (emphasis added). Thus, the fact that

Mr. Martin "provid[ed] notice after the lawsuit is already underway . . . does not

satisfy this purpose." Id. at *15-16 (citing Weaver, 95 N.E.3d at 101) (holding

that serving a tort claim notice on a government entity is a "procedural precedent

which must be fulfilled before filing suit."). Additionally, Mr. Martin does not

dispute that Sergeant Vaughn was acting in the scope of his employment. Dkt.

52. As noted above, Sergeant Vaughn's actions were necessary to obtain

emergency medical care for Mr. Martin and to maintain the safety and security

in the prison. Such actions fall within the scope of a prison officer. See Lewis,

No. 1:16-cv-2759, 2018 U.S. LEXIS 116365, at *20 ("Police officers remain in the

course and scope of employment even if they commit tortious or criminal

conduct, so long as the purpose was to further their employer's business.")

(citations omitted). Therefore, the failure to file a notice of tort claim bars Mr.

Martin's intentional infliction of emotional distress claim.

IV. Conclusion

For the reasons explained above, Sergeant Vaughn's motion for summary

judgment, dkt. [40], is GRANTED. The undisputed summary judgment record

reflects that Mr. Martin's Eighth Amendment rights were not violated, and he is

procedurally barred from asserting his tort claim. Judgment consistent with this

Order, and the Court's screening Order (docket 6), shall now issue.

SO ORDERED.

Date: 8/24/2023

Sjamu Patrick banter

James Patrick Hanlon

United States District Judge

eq gs Southern District of Indiana

Distribution:

ROBERT MARTIN

202545

BRANCHVILLE - CF

BRANCHVILLE CORRECTIONAL FACILITY

Electronic Service Participant — Court Only

Elijah B. Mollet

Lewis And Wilkins LLP

emollet@lewisandwilkins.com

Eric Ryan Shouse

Lewis And Wilkins LLP

shouse@lewisandwilkins.com

19