LACRUZE v. ZATECKY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

NICHOLAS LACRUZE, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-02148-JPH-KMB

)

D. ZATECKY, et al., )

)

Defendants. )

ORDER ON STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Nicholas LaCruze sued correctional and administrative staff

("State Defendants") at Pendleton Correctional Facility alleging that they were

deliberately indifferent to his conditions of confinement and used excessive force

against him.

State Defendants have filed a motion for summary judgment.1 Dkt. [97].

For the reasons below, that motion is granted in part and denied in part.

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

1 Medical Defendants also moved for summary judgment. Dkt. 93. Their motion has

been resolved by a separate order.

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).

II.

Surreply and Plaintiff's Notice to the Court

Mr. LaCruze filed a surreply to the State Defendants' motion for summary

judgment. Dkt. 18. A surreply may be filed "only if the movant cites new evidence

in the reply or objects to the admissibility of the evidence cited in the response."

Local Rule 56-1(d). A surreply "must be limited to the new evidence and

objections." Id. The State Defendants did not cite new evidence in their reply.

They do take issue with Mr. LaCruze's failure to provide detailed citations in his

response brief to the over 100 pages of exhibits he attached to it. But his surreply

does not address that issue. Instead, it rehashes arguments made in his

response brief and argues that the State Defendants did not provide complete

responses to his discovery requests. The Court's review of the surreply reveals

that it is not permitted by Local Rule 56-1(d). Accordingly, the Court did not

consider plaintiff's surreply. Dkt. 118.

The Court granted the State Defendants' second motion for protective

order and denied Mr. LaCruze's motion to compel. Dkt. 119. The Court also

provided Mr. LaCruze an opportunity to supplement his response to the State

Defendants' motion for summary judgment. Id. Mr. LaCruze filed a two-page

notice with the Court and attached 108 pages of exhibits. The notice argues that

the State Defendants have video evidence they did not produce and that the

Court did not address all the discovery disputes raised in his motion to compel.

Dkt. 120. He also moves to reopen discovery to allow him to obtain discovery he

previously requested from the State Defendants. Id.

"A motion must not be contained within a brief, response, or reply to a

previously filed motion, unless ordered by the court." Local Rule 7-1(a).

Nevertheless, Mr. LaCruze has not shown good cause to reopen discovery. The

Court previously addressed all the issues raised in his motion to compel. Dkt.

119. Thus, to the extent his notice was intended as a motion to reopen discovery,

it is denied. Dkt. [120].

III.

Factual Background

Because State Defendants moved for summary judgment under Rule 56(a),

the Court views and recites the evidence "in the light most favorable to the non-

moving party and draw[s] all reasonable inferences in that party's favor." Zerante

v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

A. The Parties

Mr. LaCruze is an Indiana Department of Correction ("IDOC") inmate who

at all relevant times was housed at Pendleton Correctional Facility ("Pendleton").

Dkt. 98-3 at 11-12.

State Defendants were all employed at Pendleton. Dushan Zatecky was the

warden. Dkt. 98-2 at 1. Duane Alsip was the deputy warden. Dkt. 106-1 at 60.

Jonathan Jackson was a correctional lieutenant. Dkt. 98- 5 at 1. Boyd Lunsford

and Jason Griffin were correctional sergeants. Dkt. 98-7 at 1; dkt. 98-8 at 1. Eric

Hammond was a correctional officer. Dkt. 98-9 at 1. Misty Stamper was a

program coordinator. Dkt. 98-6 at 1. James Walker was a maintenance foreman.

Dkt. 98-11 at 1.

B. IDOC's COVID-19 Precautions

In response to the COVID-19 pandemic, on March 16, 2020, the IDOC

implemented Executive Directive 20-20 which presented and authorized the

IDOC's Pandemic Preparedness and Response Plan ("the Pandemic Response

Plan"). Dkt. 98-1. The purpose of the Pandemic Response Plan was to manage

infectious diseases in the IDOC "through a comprehensive approach which

includes prevention, testing, appropriate treatment, education, and infection

control measures." Id. The Pandemic Response Plan outlined measures such as

social distancing, monitoring for infections, and isolating ill inmates. Id. Warden

Zatecky deferred to IDOC's Chief Medical Officer Kristen Dauss's expertise

regarding how to handle the pandemic. Dkt. 98-2 at 1-2. Dr. Dauss

recommended that inmates who had tested positive for COVID-19 should be

housed together, away from other inmates. Id.

Several measures were taken at Pendleton to prevent the spread of the

virus. Prison officials began to restrict inmate movement near the beginning of

the pandemic. Dkt. 98-3 at 31-32. Inmates and staff were provided masks,

although staff did not always wear them. Id. at 33. Daily temperature checks

were implemented. Id. at 34.

C. Mr. LaCruze's Exposure to COVID-19

In late March or early April 2020, at the beginning of the COVID-19

pandemic, an inmate from the American Legion dorm was transferred to Mr.

LaCruze's dorm. LaCruze Deposition, dkt. 98-3 at 37-38. The inmate had a heart

attack and was taken to the hospital where he tested positive for COVID-19. Id.

Around this time, Mr. LaCruze began experiencing symptoms of COVID-19 and

was placed on quarantine in an individual cell in the ROT building. Id. at 35-37.

After Mr. LaCruze had been quarantined in an individual cell for a few days, he

was moved to the F-Gym where other inmates were also being housed. The exact

date of this transfer is not in the record. Mr. LaCruze testified that Officer Griffith

told the inmates in the ROT building that COVID-19 positive inmates were being

moved there so anyone who refused to move to the F-Gym would be exposed to

the virus. Id. at 42. In the interim, a team from the Indiana Department of Health

would be cleaning and sanitizing the individual cells. Dkt. 98-2 at 2.

On April 14 or 15, 2020, representatives from the Indiana Health

Department visited the facility and tested inmates for COVID-19, including Mr.

LaCruze. Id. at 39-40. Medical records reflect that the test results were received

on April 19, 2020, and that Mr. LaCruze had tested positive for the virus. Dkt.

98-4.

D. The April 17, 2020, Gym Riot

On April 17, 2020, prison officials told the inmates in F-Gym to pick their

belongings up from the floor because someone was coming to clean. Dkt. 98-3

at 43. A few hours later, Lt. Jackson tried to move an inmate who had tested

positive for COVID-19 into the gym. Id. at 44-45. The inmate had recovered from

the infection and had tested negative for COVID-19, but the inmates in the gym

did not know this. Dkt. 98-5 at 1. The inmates began to yell that the inmate

should not come into the gym before they received their COVID-19 test results.

Dkt. 98-3 at 44. An inmate walked past Mr. LaCruze and said he heard that 30

inmates in the gym tested positive for the virus. Id. This prompted Mr. LaCruze

to move toward the area of the gym where inmates were arguing with correctional

officers including Ms. Stamper. He was hoping to hear from the officers whether

it was true that test results for inmates housed in the gym had come back

positive. Id.

The video of the incident shows several inmates, including Mr. LaCruze,

get close to Ms. Stamper and other staff. Dkt. 104 at 10:40. Ms. Stamper told

the inmates to step back at least twice. Dkt. 98-6 at 2. She felt like they were

going to attack her and was afraid for her safety. Id. Ms. Stamper deployed OC

spray in an arc motion in the direction of the advancing inmates. Id.; dkt. 104

at 11:05. Some of the spray hit Mr. LaCruze. Dkt. 98-3 at 49-50. In response, he

lunged toward Ms. Stamper and punched her in the face, knocking her to the

wall. Dkt. 104 at 11:11. Sgt. Lunsford went to help Ms. Stamper, and several

inmates began beating him until he lost consciousness. Dkt. 98- 8 at 2. Mr.

LaCruze hit other officers, although he does not remember who because he

blacked out when he was hit with OC spray. Dkt. 98-3 at 49-50.

After Mr. LaCruze punched Ms. Stamper, he hit another officer and was

then pushed out of the view of the camera by a third officer. Thus, there is no

video evidence of how officers responded to Mr. LaCruze after that point. He

testified at his deposition that he was beaten to within an "inch of [his] life" and

that he would not have survived if inmates had not come to his defense by

throwing things at the officers. Dkt. 98-3 at 44. He was covered in blood,

handcuffed with a correctional officer putting all his weight on Mr. LaCruze's

neck, while other officers kicked and punched him in the face. Id.

The defendants ignore this sworn testimony from Mr. LaCruze and instead

cite medical records that state Mr. LaCruze suffered no injuries other than a

small pin prick on his left buttock. Dkt. 99 at 7, 18 (citing 98-12). Mr. LaCruze

disputed the accuracy of this medical record during his deposition. Dkt. 98-3 at

69.

Although Mr. LaCruze was not able to identify every officer that allegedly

used excessive force, he testified at his deposition that Ms. Stamper tried to

gouge out his eye and that defendants Jackson, Walker, and Hammond held him

down while other correctional officers kicked and punched him. Id. at 54-58. Mr.

LaCruze also testified that he had no memory of Sgt. Lunsford applying excessive

force against him, but that Sgt. Lunsford was part of the team of correctional

officers responding to the disturbance in the gym. Id. at 58-59.

Mr. LaCruze subsequently pleaded guilty in state court to assaulting

defendants Stamper, Hammond, and Walker. Dkt. 98-3 at 61-63.

E. Mr. LaCruze's Placement in the D.O. Building and Transfer to

Westville

After the riot, Mr. LaCruze was moved to a dry cell where he remained

handcuffed for 6-7 hours. He was not given a shower to remove the OC spray

and he had no access to water or a toilet. He was then moved to a strip cell where

he had access to a sink and toilet, but the water was undrinkable. Dkt. 98-3 at

45. Mr. LaCruze did not know who moved him to these cells, but it was not any

of the defendants. Id. at 55. He was transported to Westville Correctional Facility

on April 22 or 23, 2020. Id. at 60.

IV.

Discussion

Mr. LaCruze alleges several Eighth Amendment violations. Relevant to the

claims against the State Defendants, the Court identified the following claims at

screening:

• Eighth Amendment deliberate indifference claims against defendants

Zatecky, Alsip, Stamper, Jackson, Griffin for knowingly exposing the

plaintiff to COVID-19;

• Eighth Amendment excessive force and deliberate indifference claims

against defendants Stamper, Jackson, Lunsford, Hammond, and Walker

for their involvement in beating the plaintiff, spraying him with mace, and

declining to provide him access to medical treatment;

• Eighth Amendment conditions of confinement and deliberate indifference

claims against defendants Zatecky, Alsip, Jackson, Lunsford, and

Hammond for failing to allow the plaintiff to be decontaminated after he

was sprayed with mace and for failing to provide the plaintiff with access

to clean water after the excessive force incident, while the plaintiff suffered

with symptoms of COVID-19; and

• A State law claim against Warden Zatecky seeking indemnification.

Dkt. 12 at 4−5.

A. COVID-19 Claims

The Eighth Amendment imposes certain duties on prison officials, such as

the duty to ensure that inmates receive adequate food, clothing, shelter, and

medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted).

An official who fails to uphold these duties violates the Eighth Amendment upon

exhibiting "deliberate indifference to a substantial risk of serious harm to an

inmate." Id. at 828.

"A prison official cannot be found liable under the Eighth Amendment for

denying an inmate humane conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health or safety." Id. at 837. "[T]he

official must both be aware of facts from which the inference could be drawn that

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

inference." Id.

Mr. LaCruze believes that he should not have been moved from

quarantining in a single-man cell to the F-Gym and that prison officials should

not have brought an inmate with COVID-19 to the gym. But the evidence shows

that the inmate brought to the gym had recovered from COVID-19 and tested

negative for the virus before being brought to the gym. And even if a reasonable

jury could find that placing Mr. LaCruze in a gym with a group of inmates who

were exhibiting symptoms of COVID-19 could pose a substantial risk of harm to

his health or safety, Mr. LaCruze would have to show deliberate indifference to

that risk. See Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020) (finding that

the transmissibility of COVID-19 combined with a prison's dormitory-style

housing presented a substantial risk that prisoners "will be infected with COVID-

19 and have serious health effects as a result[.]").

Here, the designated evidence cannot support a finding that the

defendants were deliberately indifferent to that risk. As a preliminary matter,

Pendleton staff undertook efforts to prevent the spread of COVID-19 by

implementing the IDOC's Pandemic Response Plan. This called for measures

such as social distancing, monitoring for infections, and isolating ill inmates.

Dkt. 98-1. Warden Zatecky followed guidance from the IDOC's top medical

advisor. Dkt. 98-2 at 1-2. This "reasonabl[e] reli[ance] on the judgment of medical

personnel" does not amount to deliberate indifference. Miranda v. Cnty. of Lake,

900 F.3d 335, 343 (7th Cir. 2018). Non-medical officials are presumptively

"entitled to defer to the professional judgment of the facility's medical officials on

questions of prisoners' medical care." Hayes v. Snyder, 546 F.3d 516, 527 (7th

Cir. 2008).

Mr. LaCruze was moved from his dorm to a single-man cell because he

was suspected of having COVID-19 due to his symptoms. Dkt. 98-3 at 37.

Separating sick inmates and healthy inmates was at the recommendation of

IDOC's medical director and was consistent with the Pandemic Response Plan.

Dkt. 98-2 at 1-2. Mr. LaCruze was moved to the gym to allow a cleaning crew to

sanitize housing areas of the prison. Id. The inmate whose appearance at the

gym door sparked the riot had recovered from, and tested negative for, COVID-

19. So, despite the beliefs of the inmates in the gym, there is no designated

evidence that defendants placed a known COVID-positive patient among non-

infected inmates (in fact, Mr. LaCruze was already positive for the virus when he

was moved to the gym, although his test results had not yet been received). The

defendants' actions show an intent to remediate the harm caused by the virus

and prevent its spread, not a conscious disregard for the health risks posed by

it.

The undisputed evidence is thus that Pendleton staff responded

reasonably to the COVID-19 pandemic. Other federal courts to examine the issue

have concluded that, because the prisons had implemented protective measures

like those in the IDOC's Pandemic Response Plan, plaintiffs could not show that

prison officials had a reckless disregard for the inmates' safety. See Wilson, 961

F.3d at 841 (finding that deliberate indifference claim failed on the subjective

prong because protective measures included screening, quarantining sick

inmates, limiting group gatherings, screening inmates and staff, enhanced

cleaning measures, and providing masks to inmates); Valentine v. Collier, 956

F.3d 797, 802 (5th Cir. 2020) (vacating preliminary injunction because protective

measures did not show state of mind necessary for deliberate indifference); and

Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (same). No jury could

conclude that the State Defendants' actions evinced deliberate indifference, even

though Mr. LaCruze was sickened by the virus. Farmer, 511 U.S. at 844

(defendant "responded reasonably to the risk, even if the harm ultimately was

not averted").

In support of his claim that Sgt. Griffin acted with deliberate indifference

to the risk of spreading COVID-19, Mr. LaCruze testified that when Sgt. Griffin

moved Mr. LaCruze from his single-man quarantine cell to the gym, Sgt. Griffin

threatened him by saying that anyone staying in the one-man cells would be

exposed to COVID-19 because prison officials were moving in inmates who had

tested positive for the virus. Dkt. 98-3 at 42. The Seventh Circuit has held that

"threats of grave violence" and "verbal abuse by guards" can constitute cruel and

unusual punishment under the Eighth Amendment. Hughes v. Farris, 809 F.3d

330, 334 (7th Cir. 2015). But no reasonable juror could conclude that Sgt.

Griffin's comments were a threat or were abusive. Sgt. Griffin did not threaten

to expose Mr. LaCruze to the virus. Instead, he informed Mr. LaCruze how the

prison was housing inmates to protect them from exposure.

For these reasons, summary judgment is granted as to all of Mr. LaCruze's

COVID-19-exposure claims. Because the Court has found as a matter of law that

the defendants did not violate Mr. LaCruze's constitutional rights, the Court

need not address the defendants' qualified immunity argument. Sparing v.

Village of Olympia Fields, 266 F.3d 685, 688 (7th Cir. 2001) (the first step of a

qualified immunity determination is whether the plaintiff has shown the violation

of an actual constitutional right).

B. Excessive Force During the April 17, 2020, Incident

The Court turns to Mr. LaCruze's excessive force claim as it relates to the

riot in the F-gym. Mr. LaCruze contends that Defendants used excessive force

when Defendant Stamper sprayed him with OC spray and when several

Defendants hit, kicked, and beat him after he was taken down to the ground.

"[W]henever prison officials stand accused of using excessive physical force

in violation of the Cruel and Unusual Punishments Clause, the core judicial

inquiry is . . . whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm." Hudson v.

McMillian, 503 U.S. 1, 6−7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320−21

(1986)).

As the Seventh Circuit has explained,

The ultimate determination of the intent of the person applying the

force in an excessive force claim involving prison security measures

depends upon a number of factors, including: (1) the need for the

application of force; (2) the relationship between the need and the

amount of force that was used; (3) the extent of injury inflicted; (4)

the extent of the threat to the safety of staff and inmates, as

reasonably perceived by the responsible officials on the basis of the

facts known to them; and (5) any efforts made to temper the severity

of a forceful response.

McCottrell v. White, 933 F.3d 651, 663 (7th Cir. 2019) (internal citations omitted).

1. Sgt. Lunsford

Mr. LaCruze testified that he named Sgt. Lunsford as a defendant because

he was present during the riot. Dkt. 98-3 at 58-59. Mr. LaCruze therefore has

not designated evidence that Sgt. Lunsford used force against him. Moreover,

while the video does not capture everything that happened to Mr. LaCruze after

he punched Ms. Stamper, it does show Sgt. Lunsford lying on the ground

severely injured. Thus, he could not have used any force against Mr. LaCruze.

Accordingly, summary judgment is granted to Sgt. Lunsford due to lack of

personal involvement.

2. Ms. Stamper's use of OC spray

The situation that Ms. Stamper faced presented a serious threat of harm

to both staff and inmates in the F-Gym. She and the other prison employees

present in the gym were outnumbered by inmates who were angry and scared

about the introduction of an inmate they believed had COVID-19. As the inmates

became more agitated and drew closer to Ms. Stamper, she ordered them to back

away. Dkt. 98-6 at 2. When they repeatedly failed to comply, she sprayed a short

burst of OC spray in their direction. Id.

Given the video evidence, no reasonable juror could conclude that Ms.

Stamper deployed OC spray in a malicious attempt to cause harm rather than

in a good-faith attempt to restore order. Hudson, 503 U.S. at 6−7. Her limited

use of OC spray after warning inmates to step back was a measured and

reasonable response that caused minimal harm to the inmates who had not

followed her orders. See McCottrell, 933 F.3d at 663. Summary judgment is

granted to Ms. Stamper with respect to Mr. LaCruze's claim that she used

excessive force when she sprayed him with OC.

3. Use of force by Defendants Stamper, Jackson, Hammond, and

Walker after Mr. LaCruze assaulted officers

The parties dispute whether the amount of force used on Mr. LaCruze after

he was taken down was excessive. Given the nature of the melee that broke out

in the F-gym and the evidence that Mr. LaCruze physically assaulted and hit

multiple prison personnel, prison personnel were unquestionably entitled to use

force to subdue him and restore order. Whitley v. Albers, 475 U.S. 312, 321-23

(1986) ("When the 'ever-present potential for violent confrontation and

conflagration,' [ ], ripens into actual unrest and conflict, the admonition that 'a

prison's internal security is peculiarly a matter normally left to the discretion of

prison administrators,', [ ] carries special weight.") (citations omitted and

cleaned up).

The question then is whether "the evidence, viewed in the light most

favorable to the plaintiff, will support a reliable inference of wantonness in the

infliction of pain." Id. at 322. In other words, whether the force was "applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm." Hudson, 503 U.S. at 6−7. While many of the events that are

the subject of this case were captured on video, there is no video of much of Mr.

LaCruze's encounter with the officers after he punched Ms. Stamper. So, with

respect to what occurred during that timeframe, the Court must look to other

designated evidence.

Mr. LaCruze contends in his verified response that after he was taken

down, one officer had "their knee in the back of my neck with all his body weight

on my neck," other officers kicked him "in the head & face & stomp[ed] [him] in

the back," and Ms. Stamper tried to scratch his right eye out. Dkt. 116 at 18;

dkt. 98-3 at 21; 54. He also has presented testimony that Defendants Walker,

Jackson, and Hammond held him down while other correctional officers beat

him to "within an inch" of his life. Dkt. 98-3 at 44, 54-58.2

Defendants Jackson and Walker admit that they helped restrain

Mr. LaCruze but deny that they beat him once he was restrained or allowed other

officers to do so. Dkt. 98-5; dkt. 98-11. Defendant Hammond attests that he only

used the force necessary to subdue inmates who were attacking him and other

officers. Dkt. 98-9. He also denies that he used force on any restrained inmate.

Id. Defendant Stamper contends that she did not "kick, punch, or attempt to

2 Defendants may be liable under § 1983 for failing to take reasonable steps to stop the

use of excessive force by fellow officers. Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000)

(allowing failure to intervene theory to proceed in excessive force case despite not being

explicitly pled in the complaint; although "a plaintiff must establish a defendant's

personal responsibility for any claimed deprivation of a constitutional right, a

defendant's direct participation in the deprivation is not required"). Here, a reasonable

juror crediting Mr. LaCruze's version of events, could conclude that these Defendants

participated in the use of excessive force against him by holding him down while other

officers beat him.

scratch or gouge [Mr.] LaCruze's eyes," and that she did not "lay a finger on him"

once he was restrained. Dkt. 98-6 at 2.

Whether by design or neglect, Defendants do not acknowledge or confront

Mr. LaCruze's evidence, instead arguing that they are entitled to summary

judgment because Mr. LaCruze failed "to offer admissible evidence that he was

beaten by any of the Defendants." Dkt. 117 at 3. The conflicting testimony

creates material disputes of fact that preclude summary judgment in their favor.3

To prevail at a jury trial, Mr. LaCruze will have to convince a jury that the officers

acted for the purpose of harming him, and not in a good faith effort to restore

security. Whitley, 475 U.S. at 320-21; Federal Civil Jury Instructions of the

Seventh Circuit, Pattern Instruction No. 7.18. But given the conflicting material

facts, those factual determinations need to be made by a jury.

Summary judgment is therefore denied on Mr. LaCruze's claim that

defendants Stamper, Jackson, Walker, and Hammond used excessive force after

he was taken down.

3 Had Defendants confronted Mr. LaCruze's testimony, perhaps they could have

demonstrated that their actions were reasonable as a matter of law under the standards

set forth in Whitley, 475 U.S. at 320−21, and McCottrell, 933 F.3d at 663. Officers have

substantial latitude in determining the amount of force needed in dangerous and rapidly

evolving situations, like the one the officers were confronted with here after Mr. LaCruze

struck multiple officers. But they didn't confront the evidence offered by Mr. LaCruze,

choosing instead to offer evidence of their version of what happened when officers were

struggling to secure Mr. LaCruze, thereby leaving disputes of material fact that preclude

summary judgment.

C. Denial of Medical Care and Unconstitutional Conditions of

Confinement After the April 17, 2020, Incident

The parties dispute whether Mr. LaCruze required medical care and

whether he was left in unconstitutional living conditions after he was restrained

by officers in the gym. But Mr. LaCruze has presented no evidence that

defendants Stamper, Jackson, Lunsford, Hammond, Walker, Zatecky, or Alsip

had any interactions with or personal responsibility for Mr. LaCruze after he was

restrained.

"For constitutional violations under § 1983 or Bivens, a government official

is only liable for his or her own misconduct." Locke v. Haessig, 788 F.3d 662,

669 (7th Cir. 2015) (cleaned up). Thus "[a] damages suit under § 1983 requires

that a defendant be personally involved in the alleged constitutional deprivation."

Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014); see Minix v. Canarecci, 597

F.3d 824, 833 (7th Cir. 2010) ("[I]ndividual liability under § 1983 requires

'personal involvement in the alleged constitutional deprivation.'").

Defendants Stamper and Lunsford were severely injured in the riot.

Sgt. Lunsford was taken to the hospital and Ms. Stamper was granted one year

of administrative leave after she received medical treatment for her injuries. Dkt.

98-8 at 2; dkt. 98-6 at 3. Defendant Hammond was sent home for a week to

quarantine after the incident. Dkt. 98-9 at 2. Defendant Jackson testified that

he had no further involvement with Mr. LaCruze after Mr. LaCruze was

restrained. Dkt. 98-5. And there is no evidence in the record that defendants

Walker, Zatecky, or Alsip had any involvement with or direct responsibility for

Mr. LaCruze's treatment and housing assignment after the riot. Therefore, the

defendants are entitled to summary judgment on Mr. LaCruze's post-riot claims

of deliberate indifference and unconstitutional conditions of confinement.

D. State Law Indemnification Claim Against Defendant Zatecky

At screening, the Court allowed Mr. LaCruze to proceed on a state law

claim against Warden Zatecky seeking indemnification. "In Indiana, a party may

seek indemnification based on rights under statute, contract, or common law."

Land Innovators Co., L.P. v. Bogan, 15 N.E.3d 23, 35 (Ind. Ct. App. 2014). Mr.

LaCruze did not identify in his complaint any statute, contract, or common law

that entitles him to indemnity. Nor has he identified any viable basis for this

claim in summary judgment briefing. Therefore, defendant Zatecky is entitled to

summary judgment.

V.

Conclusion

For the foregoing reasons, State Defendants' motion for summary

judgment, dkt. [97], is granted as to his deliberate indifference and conditions

of confinement claims, his excessive force claim against Sgt. Lunsford, his

excessive force claim against Ms. Stamper for using OC spray on him, and his

state law indemnification claim against Warden Zatecky. No partial summary

judgment shall issue at this time. The clerk is directed to terminate Sgt.

Lunsford, Warden Zatecky, Deputy Warden Alsip, and Sgt. Griffin as defendants

on the docket.

The motion, dkt. [97], is denied as to his claims that defendants Stamper,

Jackson, Walker, and Hammond used excessive force after he was taken down

to the ground.

These claims will be resolved through jury trial or settlement. The Court

reconsiders its previous denial of Mr. LaCruze's motion for counsel. Dkt. 85. The

Court will attempt to recruit counsel to represent him through final judgment.

SO ORDERED.

Date: 9/27/2023

Sjamnu Patnaik Hanbore

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

NICHOLAS LACRUZE

239236

WABASH VALLEY - CF

WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels

6908 S. Old US Hwy 41

P.O. Box 1111

CARLISLE, IN 47838

Carlton Wayne Anker

Lewis and Wilkins LLP

anker@lewisandwilkins.com

Douglass R. Bitner

Stoll Keenon Ogden PLLC

doug. bitner@skofirm.com

Eric Ryan Shouse

Lewis And Wilkins LLP

shouse@lewisandwilkins.com

20