KYLE v. INDIANA I.D.O.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

ERIC CHARLES KYLE, )

)

Plaintiff, )

)

v. ) No. 2:23-cv-00251-JMS-MG

)

CHAD PLATT I.D.O.C. Recreation Director, et )

al., )

KEITH HARTZEL Deputy Warden, )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTIONFOR SUMMARY JUDGMENT

Plaintiff, Eric Charles Kyle, an inmate at Plainfield Correctional Facility ("PCF" or

"Plainfield"), brought this action alleging constitutional violations related to asbestos exposure at

the PCF gymnasium. Dkt. 2. Defendants, Recreation Director David "Chad" Platt, and Deputy

Warden Keith Hartzell, have moved for summary judgment. Dkt. 41. Both Defendants argue that

summary judgment is proper because Mr. Kyle has not alleged that he suffered any injury, he was

not subjected to an objectively serious condition, the defendants were not deliberately indifferent

to the risk of asbestos exposure, and the defendants are entitledt to qualified immunity. Dkt 43. For

the reasons explained in this Order, the defendants are entitled to summary judgment on all of

Mr. Kyle's claims and the motion, dkt. [41] is GRANTED.

I.

Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a). When reviewing a motion for summary judgment, the

Court views the record and draws all reasonable inferences from it in the light most favorable to

the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572–73 (7th Cir.

2021). It cannot weigh evidence or make credibility determinations on summary judgment because

those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). A court

only has to consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it need not

"scour the record" for evidence that might be relevant. Grant v. Trs. of Ind. Univ., 870 F.3d 562,

573−74 (7th Cir. 2017) (cleaned up).

A party seeking summary judgment must inform the district court of the basis for its motion

and identify the record evidence it contends demonstrates the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Whether a party asserts that a fact is undisputed or genuinely disputed, the party must

support the asserted fact by citing to particular parts of the record, including depositions,

documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). Failure to properly support a fact in

opposition to a movant's factual assertion can result in the movant's fact being considered

undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

II.

Factual Background

Because Defendants have moved for summary judgment under Rule 56(a), the Court views

and recites the evidence in the light most favorable to Mr. Kyle and draws all reasonable inferences

in his favor. Khungar, 985 F.3d at 572–73.

A. The Parties

During the time period at issue, Mr. Eric Kyle was an inmate incarcerated at Plainfield.

Dkt. 42-1 at 9 (Kyle's Deposition). Starting in November of 2020, he was hired at the prison as a

rec worker for the sanitation department. Id. at 12, 16. As part of his job duties, Mr. Kyle would

wipe down equipment, sweep, mop and buffer the gym floor. Id. at 14. He also would also perform

gym maintenance such as removing the floor tiles as they became loose. Id.

Defendant David "Chad" Platt was an employee at PCF and formally held the title of

Recreation Coordinator. Dkt. 42-3 at 1. Mr. Platt served as Mr. Kyle's direct supervisor. Dkt. 42-1

at 14.

Defendant Keith Hartzell was an employee at PCF and served as the Deputy Warden of

Reentry. Dk 42-2 at 1. In his role, he addressed general sanitation issues that were reported

throughout PCF and would submit work orders or contact the maintenance supervisor directly

depending on the issue. Id. On rare occasions, he would come to the gymnasium and talk with the

rec workers. Id. at 36.

B. Mr. Kyle's Exposure to Asbestos and PCF Testing

In or about early 2022, the heating system in the PCF gym was not operational, and the

cold temperatures within the building caused the tiles in the gym to slowly loosen, tile-by-tile. Dkt.

42-3 at 1. When tiles became loose, Defendant Platt or other recreational workers would remove

them from the gym and place the discarded tiles in a closed room. Id. As part of his job, Mr. Kyle

spent about nine to ten hours daily in the gymnasium. Dkt. 42-1 at 15. When he noticed tiles

becoming loose, Mr. Kyle was given a long metal bar with a flat blade at the end of it to wedge

underneath the individual tiles and pop them loose from the adhesive adhering them to the floor.

Id. at 15. They were then placed on a pushcart located in a closed room. Dkt. 42-3 at 1.

Mr. Kyle testified that that early on in the tile removal process, he notified Mr. Hartzell that

more and more tiles were becoming loose, and Mr. Hartzell told him, "just hang on…we'll see

what should be the proper circumstances to take care of the situation." Dkt 42-1 at 34. In November

of 2021, Mr. Kyle asked Mr. Platt if they should simply remove all the tiles rather than waiting for

them to deteriorate individually. Id. at 16- 17. Mr. Platt responded that they would need Mr.

Hartzell's approval before they could fully remove all tiles, and he instructed Mr. Kyle to just

continue to remove the tiles as they became damaged. Id. Mr. Hartzell eventually came down to

the gym and told the rec workers "it's all right to go ahead and start popping up the tiles." Id. at 35.

In his affidavit, Mr. Hartzell alleges he was not involved in any of the decisions surrounding

removing the tiles within the gymnasium, closing the gym, or implementation of tile removal and

asbestos remediation. Dkt. 42-2 at 1-2.

By May of 2022, Mr. Platt attested that he was instructed by PCF's physical plant director

to remove the remaining tiles from the gym floor that had not already become loose from

temperature fluctuations. Dkt. 42-3 at 1-2. Recreation workers then began removing all the tiles,

whether they were loose or not, from the gym floor. Dkt. 42-1 at 21.

When Mr. Kyle would pop the tiles loose with the metal bar, the dust and debris from the

tiles would become airborne. Dkt. 42-1 at 25. At times, the ventilation system in the PCF gym did

not work, and the gym used large propane heat blowers to warm the space which stirred up more

dust. Id. After the rec workers discussed their concerns about asbestos and airborne debris, Mr.

Hartzell simply stated that during the removal, the workers should spray water on the floor to help

with dust and debris. Id. at 35-36. Although Mr. Kyle discussed his concerns related to potential

asbestos and tile contamination many times with Mr. Platt, Mr. Platt continued to direct the removal

of the floor tiles. Id. at 20. Early on in the removal process, Mr. Kyle asked Mr. Platt for respirators

to protect rec workers from contaminated dust and debris; however, Mr. Platt did not provide

respirators to any of the workers. Id. at 23-24.

On May 17, 2022, PCF Plant Director Servizzi learned about the possibility of asbestos,

and another IDOC employee sent correspondence to have the gym floor tested. Dkt. 42-4 at 1. On

May 26, 2022, August Mack Environmental, a licensed asbestos testing company, performed an

assessment of the PCF gymnasium. Dkt. 42-5 at 1. The assessment, delivered to staff in mid-June,

reported that there was asbestos containing material ("ACM") present within the gym and "the

ACMs identified as part of this survey do not require abatement provided that these materials are

maintained in good condition (or non-friable state), and they will not be disturbed or impacted

(rendered friable) by any renovation or operations and maintenance activities." Id. at 3.

On June 1, the gym was closed, and IDOC placed red tape across the double doors with

the words "ASBESTOS, DO NOT ENTER" on the tape. Dkt. 42-1 at 30. After the testing

confirmed the presence of asbestos, Mr. Kyle and other inmates were not allowed within the

gymnasium except to retrieve equipment for outdoor recreation. Id. at 27. Shortly thereafter, Mr.

Kyle was relocated to Wabash Valley. Id. at 8. On August 4, 2023, August Mack again performed

asbestos tests within the PCF gymnasium and determined that "all air samples collected within the

gymnasium were determined to be below the AHERA clearance level… and therefore, meet the

criteria." Dkt. 42-5 at 14-15.

Mr. Kyle has not experienced any symptoms or illnesses as a result of his exposure other

than headaches. Dkt. 42-1 at 42. He did receive an x-ray at Wabash Valley which came back

normal. Id. at 45.

III.

Discussion

Under the Eighth Amendment, "prisoners cannot be confined in inhumane conditions."

Thomas v. Blackard, 2 F.4th 716, 720 (7th Cir. 2021) (citing Farmer v. Brennan, 511 U.S. 825, 832

(1994)). A conditions-of-confinement claim includes both an objective and subjective component.

Giles v. Godinez, 914 F.3d 1040, 1051 (7th Cir. 2019). Under the objective component, a prisoner

must show that the conditions were objectively serious and created "an excessive risk to his health

and safety." Id. (cleaned up). Under the subjective component, a prisoner must establish that the

defendants had a culpable state of mind — that they "were subjectively aware of these conditions

and refused to take steps to correct them, showing deliberate indifference." Thomas, 2 F.4th at 720.

Proving the subjective component is a "high hurdle" that "requires something approaching a total

unconcern for the prisoner's welfare in the face of serious risks." Donald v. Wexford Health

Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020) (internal quotations omitted). Neither "negligence

[n]or even gross negligence is enough[.]" Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008).

Conditions of confinement must be severe to support an Eighth Amendment claim; "the

prison officials' act or omission must result in the denial of 'the minimal civilized measure of life's

necessities." Id. at 834. The Eighth Amendment only protects prisoners from conditions that

exceed "contemporary bounds of decency of a mature, civilized society." Lunsford v. Bennett, 17

F.3d 1574, 1579 (7th Cir. 1994). In other words, "[a]n objectively sufficiently serious risk is one

that society considers so grave that to expose any unwilling individual to it would offend

contemporary standards of decency." Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004)

(quotation marks and citations omitted).

A. Failure to Present Evidence of Injury

The Prison Litigation Reform Act (“Act”) states that “(n)o Federal civil action may be

brought by a prisoner confined in a jail, prison, or other correctional facility for mental or

emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C.

§ 1997e(e). Mr. Kyle testified that he suffered no injury from his exposure to asbestos at PCF other

than mild headaches. Dkt. 42-1 at 42. Rather, he states that he brings claims to recover potential

future medical expenses that he could incur from the exposure in ten to twenty years-time. Id. at

42, 47. Although Defendants note that Mr. Kyle cannot sustain a claim without alleging an injury,

Mr. Kyle argues that under the pro se pleading standards established in Erickson v. Pardus, he need

only plead the bare notice requirement as to the injuries he suffered. 551 U.S. 89, 94 (2007).

This is true. To survive the Rule 8(a)(2) requirements when alleging injuries within a

complaint, plaintiffs need only present bare-bones allegations of harm. However, the pleading

standard is a much lower bar than the summary judgment standard. And in that regard, Mr. Kyle

has not met that burden. "Summary judgment is not a time to be coy: conclusory statements not

grounded in specific facts are not enough." Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018)

(cleaned up).

Mr. Kyle has failed to support his damages claim with any evidence of injury. Like the

plaintiff in Dixon, Mr. Kyle "offered only conclusory allegations" without specifically citing any

harm outside of potential future harm. Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir.1997). See

Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997) (affirming dismissal of prisoner’s Eighth

amendment asbestos exposure claim where he did not show requisite physical injury). Mr. Kyle

has failed to present any evidence showing actual injury from any of the conditions he claims

existed at the PCF. For this reason, he has failed to meet injury requirement under the Act. Gibson

v. Ramsey, No. 99 C 5315, 2004 WL 407025, at *7 (N.D. Ill. Jan. 29, 2004).

B. Deliberate Indifference

In the alternative, even if Mr. Kyle had presented sufficient evidence of injury, he still has

not sufficiently proved that the defendants were deliberately indifferent to the risks of his exposure

to asbestos. The record reflects that once Mr. Servizzi, Physical Plant Director, discovered that

there was a possibility of asbestos present in the gym, IDOC staff promptly requested an

assessment from a licensed asbestos testing company. Dkt. 42-4 at 1. And although there is

conflicting evidence regarding the extent of Mr. Platt and Mr. Hartzell's involvement in the tile-

removal process, it is uncontested that both defendants did not definitively know that there was

confirmed asbestos contamination until after August Mack performed their assessment in late May

of 2022. Dkts. 41-1 at 20-22, 42-3 at 5, 42-4 at 1. When PCF staff received the results that

confirmed the presence of asbestos in the gym, executive staff members promptly closed the

facility and put signs on the door to prevent further exposure to inmates. Dkt. 42-1 at 30. Mr. Kyle

has presented no evidence outside of conclusory allegations this was not the case or that David

Platt or Keith Hartzell were deliberately indifferent in any of their actions after the gym was

reopened. Plaintiff is the nonmoving party, so he receives "the benefit of conflicting evidence and

reasonable inferences." Stockton v. Milwaukee County, 44 F.4th 605, 614 (7th Cir. 2022). That said,

he must “produce evidence sufficient to establish [the] element[s] essential to" his claim. /d.

Accordingly, Defendants David Platt and Keith Hartzell's motion for summary judgment, dkt. [26],

is GRANTED.

IV.

Conclusion

Defendants David Platt and Keith Hartzell’s motion for summary judgment is GRANTED.

Dkt. [41].

Final Judgment shall now issue.

IT IS SO ORDERED.

Date: 2/19/2025 = one Mpa! CS:

(Hon. Jane Magnus-Stinson, Judge

United States District Court

Southern District of Indiana

1 Because the Court concludes that Defendants did not violate the Eighth Amendment, it need not address their

alternative argument that they are entitled to qualified immunity.

Distribution:

ERIC CHARLES KYLE

527 S. Gilbert St.

Clinton, IN 47842

All Electronically Registered Counsel