# MARTIN v. VAUGHN

> District Court, S.D. Indiana · August 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10170499

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** August 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10170499

## How later opinions describe it (automated extraction)

- noting that summary judgment is appropriate only when no reasonable jury could find for the non-moving party
- 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
- 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"

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170499. Public record. Not legal advice.