# LACRUZE v. ZATECKY

> District Court, S.D. Indiana · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10170551

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 27, 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/10170551

## How later opinions describe it (automated extraction)

- 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[.]"
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170551. Public record. Not legal advice.