Shank v. Martinez

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MARY SHANK, )

as Personal Representative of the Estate )

of Matthew Shank, Deceased, )

)

Plaintiff, )

)

v. ) NO. 2:21-CV-070-PPS

)

OSCAR MARTINEZ, Sheriff of Lake )

County, Indiana, et al., )

)

Defendants. )

OPINION AND ORDER

After being arrested by the St. John Police Department, Matthew Shank was

brought to the Lake County Jail and tragically died a day later while in the custody of

the Lake County Sheriff. Lake County, the Sheriff, the jail’s health care provider, and

related county defendants were all dismissed earlier in the case. [DE 85, DE 97.] The

remaining Defendants are all associated with the Town of St. John. They are the

arresting officer (Neil Olson), the Chief of Police (Steven Flores), the Town of St. John

Police Department, and the Town of St. John. For ease of reference, and unless

specificity requires otherwise, I will refer to these defendants collectively as the “St.

John Defendants.” The St. John Defendants now seek summary judgment on Shank’s

array of constitutional claims. Shank has responded and also filed a Motion to Strike.

For the reasons discussed below, the St. John Defendants’ Motion for Summary

Judgment [DE 107] is GRANTED and Shank’s Motion to Strike [DE 112] is GRANTED

in PART and DENIED in PART. The case will be dismissed with prejudice.

Background1

At the outset, I will note that Shank takes issue with much of the evidence

designated and relied upon by the St. John Defendants in their Statement of Material

Facts. Shank has moved to strike Officer Olson’s affidavit [DE 107-1], seeks to bar

testimony that references the dashcam footage of Shank’s arrest, alleges that certain

evidence was not disclosed during discovery, and takes issue with the St. John

Defendants’ designation of additional affidavits because the individuals were not

disclosed as witnesses. [See DE 112 at 3–14.] I will discuss Shank’s challenges to this

evidence at the outset of the opinion in a section dedicated to Shank’s Motion to Strike.

But first, let’s discuss what happened.

On June 19, 2020, Matthew Shank was involved in a car accident with an off-

duty police officer in Crete, Illinois. [DE 112 at 42.] Shank does not dispute a St. John

Police Department report which states that Shank fled from the scene of the accident

but was pursued by the off-duty officer he had hit in Illinois. [DE 112-1 at 4.] At around

11:14 p.m., Officer Neil Olson of the St. John Police Department received a call

concerning the hit and run, as well as the pursuit by the off-duty officer. [Id.] (St. John,

Indiana is just over the border from Crete, Illinois). Shortly after receiving the call,

1 The factual record is muddied as a result of Shank’s failure to comply with Northern District of Indiana Local

Rule 56-1(b)(2), which required Shank to file a separate response to Defendants’ Statement of Material Facts [DE

108]. Shank incorporated his response to Defendants’ Statement of Material Facts within his Response to

Defendants’ Motion for Summary Judgment [DE 112], but this is expressly prohibited by Local Rule 56-1. Shank’s

inclusion of a motion to strike within his Response to Defendants’ Motion for Summary is also improper. Local

Rule 7-1(a) dictates that motions must be filed separately.

2 Because of the confusing nature in which Shank incorporated his response to Defendants’ Statement of Material

Facts, I will cite to page numbers instead of paragraph numbers.

Officer Olson saw Shank’s car and pulled it over. [Id.] Shank admitted to his

involvement in the accident in Illinois and said that he fled because he was driving on

a suspended license. [Id.] According to Officer Olson’s report, he observed “2

uncapped syringes next to 2 small empty glass bottles” during a search of Shank’s car.

[Id.] In addition, Officer Olson observed that Shank was “slow to respond and slur[red]

his words.” [Id.] Shank informed Officer Olson that he was not currently high but had

overdosed on heroin approximately two hours earlier and that a friend had

administered Narcan three times before Shank regained consciousness. [Id.]

Officer Olson charged Shank with Driving While Suspended and Possession of a

Hypodermic Syringe and transported Shank to the Lake County Jail. [DE 112 at 5, 7.]

This approximately one hour interaction constitutes the entirety of Officer Olson’s

interaction with Shank. Lake County accepted Shank into the jail and retained custody

over him for the remainder of the events in question. During booking, now just after

midnight on June 20, 2020, Officer Olson states that he informed the intake officers at

the jail about Shank’s prior overdose and use of Narcan. [Id. at 8.] Shank argues that

Defendants offer no proof to support this factual assertion other than Officer Olson’s

own affidavit. It’s a perplexing argument; it’s entirely unclear why Officer Olson’s

first-hand account of matters is not proper evidence. In any event, Olson’s version of

events is corroborated by the jail’s intake records, which include a check mark on a box

titled “[t]his inmate needs to be moved to the 4th Floor Medical after medical intake.”

[DE 107-3 at 1.] The form also has a written notation that says “detox.” [Id.] Officer

Olson’s account is further corroborated by the affidavit of Nurse Susan Ciesielski who

was working at the Lake County Jail that night. Ciesielski testified that she conducted

an “initial nursing intake screen” of Shank at the jail and was aware of his recent use of

heroin. [DE 107-4 at ¶¶3, 6.] What’s more, Shank admitted as much to the nurse. [Id.]

Several hours later, at approximately 8:30 a.m., Nurse Victoria Sallay, R.N.,

states in an affidavit that she visited Shank in Dayroom 4G (the Fourth-Floor Medical

unit) to conduct a withdrawal symptom assessment. [DE 107-5 at ¶3.] Nurse Sallay

states that Shank was “sleeping soundly on his side and did not rouse when I called

out to him.” [Id.] Nurse Sallay states that she concluded that Shank was not in any

“acute distress”, so she decided to postpone the withdrawal symptom assessment. [Id.

at ¶4.]

Nurse Sallay then states she received an urgent call at 11:31 a.m. from a

correctional officer who said that Shank appeared to be unresponsive and not

breathing. [Id. at ¶5.] Nurse Sallay responded immediately and found Shank to be pale,

without a discernible pulse, and not breathing. [Id. at ¶6.] She administered an AED

(automatic electronic defibrillator) along with chest compressions, oxygen, and a

medical “ambu” bag to provide rescue breaths, and she unsuccessfully attempted to

introduce an IV into Shank’s right arm. [Id. at ¶¶8–9.] Paramedics took over the

resuscitation efforts when they arrived. [Id. at ¶10.] According to Shank’s complaint,

the paramedics transported Shank to Methodist Hospital at approximately 12:06 p.m.

where he was pronounced dead at 12:09 p.m. [DE 27 ¶¶55–56.]

Mary Shank, as the personal representative of her son’s estate, originally

brought suit in Lake County Superior Court on January 25, 2021. [DE 4.] Shank sued

Lake County, the Sheriff of Lake County, the Lake County Sheriff’s Department, the

Town of St. John, the St. John Police Department, and the Chief of the St. John Police

Department. Defendant Lake County removed the state case to this court on February

24, 2021. [DE 1.] Shank then amended his complaint on December 8, 2021, to add

additional defendants, including Officer Olson3, Correctional Health Indiana, Inc. (the

jail’s healthcare provider), and an individual doctor and unknown employees

associated with Correctional Health. [DE 27.] As noted above, Shank later dismissed

the Lake County Defendants by agreed motion [DE 84, DE 85] and voluntarily

dismissed the Correctional Health Defendants [DE 96, 97]. All that remains now are the

St. John Defendants.

Shank’s remaining claims against the St. John Defendants include: (1) a

Fourteenth Amendment claim for inadequate medical care against Officer Olson, the

arresting officer; (2) a Fourteenth Amendment claim for inadequate training and

supervision of Officer Olson; (3) a Fourteenth Amendment Monell claim concerning the

policy, custom, and practices of the St. John Police Department; (4) a state-law based

wrongful death claim; and, according to Shank, (5) a separate Fourteenth Amendment

claim of duty and obligation to provide medical training and supervision. The St. John

Defendants argue that this fifth claim, listed as the “Fourth Claim for Relief” in Shank’s

3 The First Amended Complaint appears to erroneously refer interchangeably to Officer Neil Olson as Officer Neil

Anderson throughout the document and case caption.

First Amended Complaint [DE 27], references the St. John Defendants in title only and

not in the paragraphs that make up the substance of the claim. [DE 116 at 3.]

Regardless, the St. John Defendants argue that this claim is “otherwise covered by

[Shank’s] other claims.” [Id.] I agree, and Shank has not convincingly articulated

otherwise. I therefore consider there to be four remaining claims pending against the

St. John Defendants, the first four I listed in order above, and I will consider only those

claims in this opinion.

Discussion

Summary judgment must be granted when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A genuine dispute of material fact exists when “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). I must take the facts in the light most favorable to

the party opposing the motion. Fulk v. United Transp. Union, 160 F.3d 405, 407 (7th Cir.

1998).

The party opposing a properly supported summary judgment motion may not

rely on allegations or denials in her own pleading, but rather must “marshal and

present the court with the evidence she contends will prove her case.” Goodman v.

Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). Summary judgment is proper

if the nonmoving party fails to establish the existence of an essential element on which

he or she bears the burden of proof at trial. Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006).

Motion to Strike

I’ll begin with Shank’s Motion to Strike included in his response to the St. John

Defendants’ Motion for Summary Judgment. Resolving the motion to strike at the

outset will guide the factual allegations and materials that I will consider in analyzing

the St. John Defendants’ arguments for summary judgment.

Shank requests that I strike the four affidavits and their supporting documents

that were included in the St. John Defendants’ Motion for Summary Judgment as well

as “any reference to this evidence so that the inadmissible and improperly disclosed

materials are not taken into consideration.” [DE 112 at 2.] This includes the affidavits

of Officer Olson and Chief Flores of the St. John Police Department as well as Nurses

Ciesielski and Sallay of Correctional Health. [DE 107-1, DE 107-2 at 1–2, DE 107-4, DE

107-5.] Shank’s arguments in his motion to strike boil down to two claims: (1) that the

St. John Defendants’ evidence is inadmissible; and (2) that the St. John Defendants’

evidence has been improperly disclosed. Shank also moves to strike the St. John

Defendants’ use of the dashcam video from Officer Olson’s arrest of Shank.

The St. John Defendants filed a separate Reply to Shank’s Motion to Strike,

arguing that the affidavits comply with Rule 56(c)(4) in that they set out facts that

would be admissible in evidence, were made upon personal knowledge, and

demonstrate that the affiants are competent to testify as to the matters stated in their

affidavits. [See DE 117 at 4–6.] Regarding the dashcam video, the St. John Defendants

argue that their inadvertence in failing to produce the video in the initial disclosures,

pursuant to Rule 26(a), is ultimately irrelevant because Shank received the video in

November 2023, at least two months prior to the close of discovery. [Id. at 7-8.]

Puzzlingly, Shank never once articulates the standard for a motion to strike or

identifies a single case to support his arguments. “Motions to strike are heavily

disfavored, and usually only granted in circumstances where the contested evidence

causes prejudice to the moving party.” Rodgers v. Gary Cmty. Sch. Corp., 167 F.Supp.3d

940, 948 (N.D. Ind. 2016). This makes sense given that Rule 56 provides that “[a] party

may object that the material cited to support or dispute a fact cannot be presented in a

form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Parties may

oppose or support a motion for summary judgment “with materials that would be

inadmissible at trial so long as facts therein could later be presented in an admissible

form.” Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) (emphasis in original). Thus,

“the Court must determine whether the material can be presented in a form that

would be admissible at trial, not whether the material is admissible in its present

form.” Stevens v. Interactive Fin. Advisors, Inc., No. 11 C 2223, 2015 WL 791384, at *2

(N.D. Ill. Feb. 24, 2015).

I’ll begin with Shank’s request to strike the four affidavits that the St. John

Defendants included in their Motion for Summary Judgment. Rule 56 requires that

affidavits used to support or oppose a motion for summary judgment “must be made

on personal knowledge, set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ.

P. 56(c)(4). The requirement of “personal knowledge” permits “reasonable

inferences”, but those inferences must be “grounded in observation or other first-

hand personal experience” and not “flights of fancy, speculations, hunches, intuitions,

or rumors about matters remote from that experience.” Payne v. Pauley, 337 F.3d 767,

772 (7th Cir. 2003) (citation omitted). What’s more, an allegation that an affidavit used

to support summary judgment is “self-serving” is not enough on its own to strike the

affidavit, as the Seventh Circuit has made the obvious point that “most affidavits

submitted for these purposes are self-serving.” Id.

Shank moves to strike “the Affidavit of Officer Olson in its entirety.” [DE 112 at

5.] This broad request is frankly a little hard to swallow. Numerous paragraphs in

Olson’s affidavit are clearly based on his personal knowledge, set out facts that are

admissible, and are facts Olson is competent to testify about. [See DE 107-1 at ¶¶1–6.]

Shank next moves to strike Olson’s statements that Shank argues interpret the

dashcam video of Shank’s arrest as inadmissible under Indiana’s Best Evidence Rule

(Ind. R. Evid. 1002). The Federal Rules of Evidence govern this proceeding, so I will

look to the analogous Federal Rule 1002. Rule 1002 states: “An original writing,

recording, or photograph is required in order to prove its content unless these rules or

a federal statute provides otherwise.” Fed. R. Evid. 1002. But Rule 1002 is inapplicable

to situations where a witness identifies a video as a “correct representation of events

which he saw” or uses the video to “illustrate his testimony.” Fed. R. Evid. 1002

advisory committee’s note.

Shank seems to suggest that Officer Olson may not reference the dashcam

video in his affidavit. This argument is a fundamental misapplication of Rule 1002.

Olson states that he reviewed reports and video of his arrest of Shank to “refresh [his]

recollection.” [DE 107-1 at ¶3.] And I understand Olson’s numerous references to the

dashcam video to be illustrations of his testimony concerning his participation in

Shank’s arrest. [Id. at ¶¶7, 9–14, 17–18.] Rule 1002 would apply if Officer Olson had no

independent knowledge of Shank’s arrest and sought to testify about that arrest based

only upon his review of the dashcam video. Snyder v. Tiller, No. 3:08–CV–00470 JD,

2010 WL 3522580, at *5 (N.D. Ind. Aug. 30, 2010) (“If, on the other hand, a witness

were to seek to testify about events he only knows about from watching a video, the

original video would be required unless an exception applied.”). That is not the case

here. Officer Olson is not seeking to prove the contents of the dashcam video. His

affidavit includes testimony concerning events about which he has firsthand

knowledge. That is permissible.

Shank also argues that Olson’s statement in his affidavit that he informed the

intake officers about Shank’s use of Narcan and that Olson had no other verification

of Shank’s use of Narcan are inadmissible because there are no records or evidence to

support this statement. [DE 112 at 8.] Again, this evidence is based on his personal

knowledge, and it is something Olson could readily testify to at trial, with or without

corroborating evidence. In short, there is simply no basis to strike this testimony.

Finally, Shank argues that Olson is not qualified to state that the Lake County

Jail “had the ability to refuse intake of Shank” if they determined Shank needed

immediate medical care. [DE 112 at 9.] It is true that Olson was not an employee of the

Lake County Jail and may not be competent to testify to the jail’s policies and

procedures. But I don’t think that is what’s happening here. Olson is simply testifying

about his experience when he brings arrestees to the Lake County Jail and whether

the Jail would refuse intake of arrestees. In my own review of Olson’s affidavit, I find

that it satisfies the requirements of Rule 56(c)(4).

Shank challenges Chief Flores’ affidavit on much the same grounds as Olson’s

affidavit. Shank first argues that it is improper for Flores to rely upon the St. John

Police Department’s General Order on Arrestee Processing and Transportation,

attached as an exhibit to Flores’ affidavit, because the St. John Defendants failed to

disclose that document under Rule 26. [Id. at 14.]

Rule 26 of the Federal Rules of Civil Procedure states: “a party must, without

awaiting a discovery request, provide to other parties: . . . a copy—or a description by

category and location—of all documents . . . that the disclosing party has in its

possession, custody, or control and may use to support its claims or defenses . . . .”

Fed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added). Rule 26 also includes a duty to

supplement these Rule 26(a) disclosures “if the party learns that in some material

respect the disclosure or response is incomplete or incorrect, and if the additional or

corrective information has not otherwise been made known to the other parties

during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1).

The St. John Defendants do not respond to Shank’s Rule 26(a) failure to

disclose argument regarding the St. John Police Department General Orders 10.01 –

10.21 document, concerning Arrestee Processing and Transportation, that is attached

to Flores’ affidavit. [DE 107-2 at 3–18.] So, I will assume that document was never

produced to Shank. In this circumstance, Rule 37 places limitations on the use of such

undisclosed documents: “If a party fails to provide information or disclose a witness

as required by Rule 26(a) or 26(e), the party is not allowed to use that information or

witness to supply information on a motion . . . unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In the absence of any attempt by the

St. John Defendants to provide justification for this failure to disclose, I will strike this

document from the record on summary judgment. Salgado by Salgado v. Gen. Motors

Corp., 150 F.3d 735, 742 (7th Cir. 1998) (“[T]he [Rule 37(c)(1)] sanction of exclusion is

automatic and mandatory unless the sanctioned party can show that its violation

of Rule 26(a) was either justified or harmless.”).

Shank also argues that Flores’ statement concerning his review of the dashcam

video is an impermissible self-serving interpretation and is otherwise inadmissible.

[DE 112 at 14.] I’ve already discussed that an allegation that an affidavit is self-serving

is not a sufficient basis to strike on its own. See Payne, 337 F.3d at 772. But Shank’s

arguments concerning Flores’ comments based on his review of the dashcam video

hold water. Unlike Olson, Flores was not present at Shank’s arrest. [DE 107-2 at ¶3 (“I

have no personal knowledge of the incidents and I had no interaction with

[Shank].”).] Flores’ comment that the video “shows Shank conducting himself in a

way that was responsive and appropriate” might be admissible if Flores had been

designated as an expert witness, which to my understanding, he was not. I will

therefore not consider Flores’ affidavit in deciding the summary judgment motion.

This leaves the affidavits of Nurses Ciesielski and Sallay. [DE 107-5, DE 107-6.]

Shank argues that Ciesielski “was never disclosed as a witness by the Defendants and

the affidavit was prepared by a party that is no longer a party to this case”, by which

Shank means the Correctional Health Defendants. [DE 112 at 13.] Shank asserts the

same arguments for Sallay and adds that their affidavits are prejudicial to Shank

because of the St. John Defendants “failure to provide several documents during

discovery.” [Id. at 13–14.]

In response, the St. John Defendants note that the nurses’ affidavits were

originally before the Court in the Correctional Health Defendants’ prior motion for

summary judgment. [See DE 92-5, DE 92-6.] The St. John Defendants argue that they

“use [the nurses’] affidavits in the same way” as the now dismissed Correctional

Health Defendants and that the affidavits are based on the nurses’ firsthand

interactions with Shank. [DE 117 at 5.] The St. John Defendants also argue that the

nurses are not expert witnesses and that documents produced in the St. John

Defendants’ initial disclosures provided the names of the nurses to Shank. [Id. at 4–5.]

It’s not clear to me what documents Shank claims have not been produced

during discovery for Nurses Ciesielski and Sallay. The documents cited in the St. John

Defendants Statement of Material Facts that relate to the nurses all include Bates

numbering. [See DE 108 at ¶¶34–39.] In fact, the St. John Defendants point to

numerous documents produced in initial disclosures to Shank that identify the two

nurses and their involvement in the intake process for Shank at the Lake County Jail.

[DE 117 at 5–6.]

I turn now to Shank’s argument that the nurses were not disclosed as

witnesses. Shank appears to argue that the St. John Defendants did not include the

nurses in their Rule 26(a)(1)(A)(i) disclosures. But, as the St. John Defendants point

out, Shank received production of documents that identified the nurses’ role in

Shank’s processing at the jail. And there is no requirement that an affidavit used to

support a motion for summary judgment under Rule 56 must be made by a named

party to the lawsuit.

In sum, this is unlike situations in which courts have found that Rule 26(a) and

Rule 37 operate to prohibit the use of affidavits from undisclosed witnesses to support

summary judgment. See Lavender v. Verizon New York Inc., 17-CV-6687(JS)(ARL), 2023

WL 1863245, at *10–11 (E.D.N.Y. Feb. 9, 2023). Here, regardless of whether the St. John

Defendants themselves included the nurses in their initial disclosures (that still is not

clear to me), I find that there is no prejudice to Shank. Shank had clear notice of the

involvement of these nurses and these exact affidavits have already been used in this

litigation. See Cinclips, LLC v. Z Keepers, LLC, 8:16–cv–1067–T–23JSS, 2017 WL 2869532

(M.D. Fla. July 5, 2017) (denying motion to strike based on Rule 26(a) failure to

disclose argument because the witness’ identity had otherwise been made known

through discovery).

Shank’s final request to strike relates to the dashcam footage of Shank’s arrest.

Shank argues that the St. John Defendants “failed to disclose the footage” as required

by Rule 26. [DE 112 at 5–6.] The St. John Defendants are unsure whether their initial

disclosures on August 2, 2021, included the video. [DE 117 at 7.] But the St. John

Defendants point to their disclosure of the dashcam video on November 30, 2023,

after a request by Shank’s counsel, which they argued occurred prior to the close of

discovery. [Id. at 7–8.] The St. John Defendants incorrectly cite Judge Martin’s

September 7, 2023, Order for the proposition that discovery had not concluded

because while the expert discovery deadline was January 17, 2024, fact discovery

ended on November 15, 2023. [DE 89.] Once again, this is a puzzling discovery

dispute to come to light at this stage in the litigation now almost four years after

Shank filed his complaint in state court. Regardless, I am convinced by the St. John

Defendants’ argument that Shank has not shown any harm in the St. John Defendants’

untimely disclosure of the video. Absent a showing of any harm, I will exercise my

discretion to deny Shank’s motion to strike the dashcam video.

Motion for Summary Judgment

I. Shank’s § 1983 Claims Fail

The St. John Defendants argue that the doctrine of qualified immunity bars all of

Shank’s federal law claims. Shank’s remaining federal claims against the St. John

Defendants include: (1) a Fourteenth Amendment claim for inadequate medical care;

(2) a Fourteenth Amendment Monell claim for inadequate training and supervision;

and (3) other Monell claims.

Qualified immunity provides that “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). “Qualified immunity ‘gives government officials breathing room to make

reasonable but mistaken judgments,’ and ‘protects all but the plainly incompetent or

those who knowingly violate the law.’” Messerschmidt v. Millender, 565 U.S. 535, 546

(2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). “[W]hether an official

protected by qualified immunity may be held personally liable for an allegedly

unlawful official action generally turns on the ‘objective legal reasonableness’ of the

action, assessed in light of the legal rules that were ‘clearly established’ at the time it

was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal citation omitted).

Evaluation of a qualified immunity defense is a two-step inquiry: “(1) whether

the facts alleged or shown by the plaintiff establish a violation of a constitutional right,

and (2) if so, whether that right was clearly established at the time of the defendant’s

alleged misconduct.” Dockery v. Blackburn, 911 F.3d 458, 466 (7th Cir. 2018). I may

analyze these factors in any order. Id. “Although qualified immunity is an affirmative

defense, the plaintiff has the burden of defeating it once the defendants raise it.” Archer

v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017). As I will discuss below, Shank has not put

forth facts that show a violation of his constitutional rights for any of his federal claims.

A. Inadequate Medical Care Claim

A “defendant is liable for providing inadequate medical care if the defendant’s

response to the plaintiff’s medical need is objectively unreasonable.” Smith v. Adams,

No. 3:18-cv-00019-SEB-MPB, 2019 WL 1542298, at *10 (S.D. Ind. Apr. 9, 2019), aff’d, 804

F.App’x 390 (7th Cir. 2020). The Seventh Circuit has articulated four factors to evaluate

the objective reasonableness of the response to medical needs: “(1) whether the officer

has notice of the detainee’s medical needs; (2) the seriousness of the medical need; (3)

the scope of the requested treatment; and (4) police interests, including administrative,

penological, or investigatory concerns. Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th

Cir. 2011). “This standard requires courts to focus on the totality of facts and

circumstances faced by the individual alleged to have provided inadequate medical

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

individual—whether the response was reasonable.” McCann v. Ogle Cty., Ill., 909 F.3d

881, 886 (7th Cir. 2018).

Shank relies on Estate of Perry v. Wenzel to argue that the St. John Defendants

violated Shank’s constitutional right to medical care. In that case, a detainee informed

officers he suffered from seizures, experienced numerous seizures while detained in

jail and later at a hospital, was unable to walk or otherwise support himself, defecated

and urinated in his pants, and was affixed with a spit mask for hours even after it

soaked through with blood. Id. at 446–451. After hours in custody and under the

supervision of jail and city medical staff, correctional officers, and police officers, all of

whom witnessed some or all of these symptoms of extreme medical distress, Perry

died on the floor of a county criminal justice facility. Id. at 450–451.

The Seventh Circuit reversed the district court’s grant of summary judgment in

favor of the city and county defendants on Perry’s inadequate medical care claims. Id.

at 453–58. On appeal, the Seventh Circuit considered the first and second factors of an

inadequate medical care claim: (1) whether the officer has notice of the detainee’s

medical needs and (2) the seriousness of the medical need. Id. at 453 (citing Ortiz, 656

F.3d at 530). The Seventh Circuit concluded that numerous factual disputes existed for

both factors. Moreover, the Seventh Circuit proclaimed that by 2010 it had been clearly

established that “the failure to take any action in light of a serious medical need”

violated a pretrial detainee’s constitutional right to adequate medical care Id. at 460

(emphasis in original).

Shank has not alleged facts anywhere near those that the Seventh Circuit in

Estate of Perry found to have created questions of fact for an inadequate medical care

claim. In interpreting the evidence in the light most favorable to Shank, I find that

Officer Olson had notice of Shank’s recent overdose and the fact that he was revived

with Narcan. Olson also knew that Shank appeared to be slurring his words and that

he was disoriented. But this is not enough to show that Shank had a sufficiently serious

medical need, or that Officer Olson had notice of any such need, at the time of his

arrest to require immediate hospitalization.

Moreover, I am dubious of any analogy that Officer Olson failed to take any

action in response to Shank’s medical needs, the second part of the constitutional right

recognized in Estate of Perry. Officer Olson promptly transported Shank to the Lake

County Jail and informed the Lake County Jail staff of Shank’s recent overdose. The jail

records reflect that Shank was turned over to medical personnel at the jail and sent to

the detox wing [DE 107-3 at 1]. In short, Officer Olson did all that he could to inform

the jail personnel of Shank’s medical needs. Shank also does not claim, or assert any

facts to support, that he requested medical care from Officer Olson at the time of his

arrest. In fact, the record reflects that Shank did not pass away for an additional eleven

hours after Officer Olson’s final interaction with Shank. I find that no reasonable juror

could conclude that Officer Olson’s actions were objectively unreasonable.

Because I find that there was no constitutional violation for inadequate medical

care, a qualified immunity defense is not necessary. See Flournoy v. City of Chicago, 829

F.3d 869, 877 n.10 (7th Cir. 2016) (“The defendants alternatively argue that we should

affirm based on qualified immunity. Because we uphold the jury’s verdict that no

constitutional violation occurred, we do not reach this alternative argument.”).

Shank does not clearly articulate in his complaint whether, and if so, to what

extent, his inadequate medical care claim applies to the remaining St. John Defendants

in addition to Officer Olson. For example, Shank has not pled any facts to support the

participation of Chief Flores, the town of St. John, or the St. John Police Department. See

Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009) (holding that public employees and

municipalities may be held liable for their own decisions and policies but are not liable

under the doctrine of respondeat superior for the acts, decisions, and policies of other

persons); Gaston v. Ghosh, 920 F.3d 493, 494-95 (7th Cir. 2019) (same and citing to Iqbal,

556 U.S. at 676-77). The St. John Defendants’ request for summary judgment on Shank’s

inadequate medical care claim is granted.

B. Inadequate Training and Supervision Claim

Shank next asserts a Fourteenth Amendment claim for inadequate training and

supervision of Officer Olson. Shank on the one hand argues that the St. John

Defendants did not have a policy in place to address situations where officers

encounter individuals who have overdosed while simultaneously, as discussed above,

asking the Court to strike the St. John Defendants’ designated evidence of a policy that

concerns just that. I noted above that the St. John Defendants failed to provide any

justification for their failure to produce the document titled General Orders 10.01 –

10.21 concerning Arrestee Processing and Transportation. [DE 107-2 at 3–18.]

Accordingly, I will not consider this document for purposes of evaluating the St. John

Defendants’ request for summary judgment on Shank’s inadequate training claim. See

Fed. R. Civ. P. 37(c)(1).

A municipality or other local government may be liable under § 1983 when

“action pursuant to official municipal policy” causes the constitutional deprivation.

Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978). This is referred

to as a Monell claim. Shank’s claim is premised upon a failure to train or supervise

theory. The Supreme Court recognized that “[i]n limited circumstances, a local

government’s decision not to train certain employees about their legal duty to avoid

violating citizens’ rights may rise to the level of an official government policy for

purposes of § 1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011). But the Supreme Court

noted that a municipality’s “culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Id. Accordingly, a failure to train must

amount to “deliberate indifference to the rights of persons with whom the [untrained

employees] come into contact.” Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378,

388 (1989)).

Deliberate indifference is a high bar, and it generally requires a plaintiff to

provide evidence of “[a] pattern of similar constitutional violations by untrained

employees.” Id. at 62. However, the Supreme Court has cautioned that “in a narrow

range of circumstances, a violation of federal rights may be a highly predictable

consequence of a failure to equip law enforcement officers with specific tools to handle

recurring situations.” Board of Cty. Com’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 409

(1997).

The St. John Defendants, unsurprisingly, urge me to focus on their perception

that Shank has provided no evidence of a pattern of constitutional violations by

untrained St. John employees who encounter individuals who recently overdosed. [DE

109 at 9.] Shank argues, and I tend to agree, that “any police department should

reasonably foresee that its officers will encounter situations where drug overdoses

exist.” [DE 112 at 18.] But this is where Shank’s claim runs out of steam. Shank

attempts to turn the pleading standard on its head to argue that the St. John

Defendants presented no evidence that they had a policy to “protect the lives of

arrestees and detainees who are or are likely to become unconscious or suffer in

transport to a jail.” [Id. at 19.] But this ignores that it is Shank’s duty to assert facts that

indicate a failure by the St. John Defendants to train or supervise employees, such as

Officer Olson, on how to handle arrestees who recently overdosed.

Moreover, Shank’s own definition of the purportedly missing policy or training

concerning detainees who “are or are likely to be unconscious or suffer in transport to

jail” doesn’t squarely fit this situation. Officer Olson interacted with Shank for a total of

approximately one hour, and Shank does not present any evidence that he was

unconscious, likely to become unconscious, or was suffering from any other emergency

medical issues while en route to the jail.

Shank’s cite to the factually inapposite case of Miranda v. County of Lake does

nothing to advance his claim. 900 F.3d 335 (7th Cir. 2018). In Miranda, the Seventh

Circuit considered a failure to train claim in the context of a woman who died in

custody after days of a water and hunger strike. Id. at 341–43. The estate of the

deceased plaintiff, a foreign national, sued on a theory based on the “alleged failure to

train Jail staff to notify detainees of their consular rights.” Id. at 345. The Circuit

rejected this claim because the estate had pointed to neither evidence of a repeated

violation of this policy or that the defendant had failed to act in the face of foreseeable

violations. Id. at 345–46.

This case does not advance the ball for Shank. Shank’s vague claim that Officer

Olson failed to complete a full investigation under Indiana’s criminal code related to

DUIs or to recognize opioid overdoses ignores that Shank does nothing to flesh out his

bare allegations that the St. John Defendants named in this claim, which appears

limited to Chief Flores and to the St. John Police Department, were either aware of a

repeated issue of processing and transporting detainees who recently overdosed or

failed to equip Officer Olson with the tools to evaluate such detainees such as Shank.

Accordingly, I grant summary judgment to the St. John Defendants on Shank’s

inadequate training and supervision claim.

C. Other Monell Policy, Custom, and Practice Claim

Shank’s last federal claim is another Monell claim that the St. John Defendants

“maintained a policy, custom or practice of denying prisoners access to medical care.”

[DE 27 at ¶95.] The Seventh Circuit has interpreted the language of Monell to support

three types of actions that can support municipal liability under § 1983: “(1) an express

policy that causes a constitutional deprivation when enforced; (2) a widespread

practice that is so permanent and well-settled that it constitutes a custom or practice; or

(3) an allegation that the constitutional injury was caused by a person with final

policymaking authority.” First Midwest Bank Guardian of Estate of Laporta v. City of

Chicago, 988 F.3d 978, 986 (7th Cir. 2021) (citation omitted). Shank must also prove that

the policy or custom demonstrates municipal fault by establishing that the

municipality either took or directed action that “facially violates a federal right” or

took action with “deliberate indifference” to Shank’s constitutional rights. Id. at 986–87.

Finally, Shank must prove that the St. John Defendants were the “moving force”

behind the federal-rights violation by showing a “direct causal link” between the

action and the violation of his constitutional rights. Id. at 987.

Shank has failed to present evidence to satisfy each step of the Monell claim

analysis. Frankly, I have a hard time understanding how Shank applied any of the

factors of a Monell claim. Shank claims there is no evidence that Olson advised jail

medical staff about Shank’s overdose or Narcan use and concludes, therefore, that

“[t]he policies in the instant case clearly fail to protect the medical needs of pre-trial

detainees.” [DE 112 at 20.] Not only is this assertion refuted by the record, but this

generalized allegation references no express policy or widespread custom, policy,

practice, or a constitutional injury by a person with final policy making authority. Nor

does this bare allegation provide any evidence that the St. John municipal defendants

themselves directed unconstitutional action or acted with deliberate indifference. And

there is no direct causal link to the municipal defendants. These rigorous requirements

of culpability and causation exist for circumstances such as this to prevent “municipal

liability [from] collaps[ing] into respondeat superior liability.” Board of County Com’rs of

Bryan County, Okl., 520 U.S. at 415. I grant summary judgment in favor of the St. John

Defendants on Shank’s Monell policy, practice, and custom claim.

II. Shank’s State Law Claim Fails

Shank’s remaining claim is a wrongful death claim under Indiana law that seeks

recovery of damages under Indiana Code §34-23-1-1. [DE 27 at ¶¶ 101–102.] Now that

all federal claims have been dismissed, I recognize that I have the authority to

relinquish jurisdiction over this remaining state law claim. See 28 U.S.C. §1367(c)(3).

The decision to relinquish jurisdiction is left to my judgment and is reviewed for an

abuse of discretion. RWJ Mgmt. Co., Inc. v. BP Prods. N. Am., Inc., 672 F.3d 476, 479 (7th

Cir. 2012). Because the issue presented on the state law claim is straight-forward and

there is little room for doubt, I will exercise my discretion and proceed to resolve the

state law claim.

Under Indiana’s wrongful death statute, the personal representative of the

decedent may maintain an action for wrongful death against a defendant “[w]hen the

death of [the decedent] is caused by the wrongful act or omission of [the defendant].”

Ind. Code § 34-23-1-1. Shank asserts that “Matthew’s death was caused by the

negligent and wrongful acts of the [St. John Defendants].” [DE 27 at ¶ 102.] The St. John

Defendants argue that they are immune from suit on Shank’s wrongful death claim

under the Indiana Tort Claims Act (“ITCA”).

The ITCA, codified at Ind. Code. §34-13-3-3, provides immunity to government

entities and employees acting within the scope of their employment for numerous

categories of acts and omissions. The St. John Defendants cite one such protection from

suit for “[t]he adoption and enforcement of or failure to adopt or enforce: a law

(including rules and regulations) . . . unless the act of enforcement constitutes false

arrest or false imprisonment.” Id. at §34-13-3-3(a)(8). This subsection of the ITCA is

commonly referred to as the “law enforcement immunity provision” and includes

“traditional law enforcement activities such as arrest and pursuit of suspects by

police.” Wilson v. Bedford Police Dep’t, 226 N.E.3d 250 (Table), 2023 WL 8827744, at *2

(Ind. Ct. App. Dec. 21, 2023). Accordingly, there is no question that Officer Olson was

acting within the scope of his employment when he arrested Shank. Id.; see also Reiner v.

Dandurand, 33 F.Supp.3d 1018, 1032 (N.D. Ind. 2014) (“The actions of pulling someone

over, arresting him, etc. are within the general scope of a police officer’s authority

under the law.”).

Shank’s attempt to sidestep the ITCA by arguing summary judgment is rarely

appropriate in negligence cases is unpersuasive. While this is undoubtedly true in

ordinary negligence cases, this argument ignores the ITCA immunity defense raised by

the St. John Defendants. There are exceptions to ITCA immunity recognized under

Indiana law such as where the “conduct forming the basis of the wrongful death claim

is also conduct that is alleged to amount to the excessive use of force”, but this

exception does not apply here. See Wynn v. City of Indianapolis, 496 F.Supp.3d 1224, 1239

(S.D. Ind. 2020). Moreover, the two exceptions listed in the law enforcement immunity

provision itself, false arrest and false imprisonment, are also inapplicable here.

Shank has not asserted any of the exceptions to ITCA immunity recognized

under Indiana law such as false arrest, false imprisonment, or excessive force.

Accordingly, I find that the St. John Defendants are immune from suit on Shank’s

wrongful death claim. See id. at 1239 n.6 (recognizing that the ITCA applies to certain

wrongful death claims); Day v. City of Indianapolis, 380 F. Supp. 3d 812, 829 (S.D. Ind.

2019), rev’d and remanded on other grounds sub nom., Day v. Wooten, 947 F.3d 453 (7th Cir.

2020) (finding that the ITCA shielded officers from a wrongful death claim premised

on negligence).

Conclusion

For the aforementioned reasons, the Court:

(1) GRANTS the St. John Defendants’ Motion for Summary Judgment [DE 107];

(2) GRANTS IN PART and DENIES IN PART Shank’s Motion to Strike

included in his response to the St. John Defendants’ Motion for Summary

Judgment [DE 112]; and

(3) DIRECTS the clerk to enter judgment in favor of Defendants Steven Flores,

Neil Olson, the Town of St. John, Indiana, and the St. John Police Department

and against Plaintiff Mary Shank and to CLOSE this case.

SO ORDERED.

ENTERED: January 16, 2025.

/s/ Philip P. Simon

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT