WINDOM v. ZATECKY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

AARON D. WINDOM, )

)

Plaintiff, )

)

v. ) No. 2:21-cv-00304-JPH-MJD

)

DUSHAN ZATECKY, et al., )

)

Defendants. )

ORDER GRANTING STATE DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

Plaintiff Aaron D. Windom sued defendants Dushan Zatecky, Duane

Alsip, Dennis Reagle, Misty Stamper, J.C. Jackson, and Eric Hammond ("State

Defendants"), alleging that they subjected him to inhumane conditions of

confinement when they exposed him to COVID-19 during April 2020. State

Defendants have moved for summary judgment.1 Dkt. [120]. For the reasons

below, that motion 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

1 Medical Defendants also moved for summary judgment. Dkt. 124. Their motion is

being resolved by separate order.

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).

Plaintiff failed to respond to the summary judgment motion. Accordingly,

facts alleged in the motion are "admitted without controversy" so long as support

for them exists in the record. S.D. Ind. L.R. 56-1(f); see S.D. Ind. L.R. 56-1(b)

(party opposing judgment must file response brief and identify disputed facts).

"Even where a non-movant fails to respond to a motion for summary judgment,

the movant still has to show that summary judgment is proper given the

undisputed facts." Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021)

(cleaned up).

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.

Windom and draws all reasonable inferences in his favor. Khungar, 985 F.3d at

572–73.

A. The Parties

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

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

Dkt. 121-1 at 37.

State Defendants were all employees of IDOC at Pendleton. Dushan

Zatecky was the warden; Dennis Reagle and Duane Alsip were deputy wardens;

and Misty Stamper was a program coordinator.2 Dkt. 23 at 1-2.

B. Pendleton's COVID-19 Policies

Beginning in March 2020, at the start of the COVID-19 pandemic, Warden

Zatecky worked with IDOC Chief Medical Officer Kristen Dauss to implement

COVID-19 policies and procedures, including procedures to safely maneuver

inmates around Pendleton. Dkt. 121-2 at 1. Warden Zatecky enacted guidelines

2 In its January 5, 2022, Screening Order, the Court did not identify any claims to

proceed in this action against defendant Eric Hammond. Dkt. 13 at 6. Although Mr.

Hammond has provided evidence in this matter and joined defendants' motion for

summary judgment, he is no longer a party to the case. Thus, the Court does not

discuss Mr. Hammond.

established by IDOC, the Indiana Department of Health, and the CDC, regarding

social distancing, maintaining cleanliness, and hand-washing. Id. at 1-2. When

COVID-19 testing became available, Indiana Department of Health staff began

testing inmates at Pendleton. Id. at 2.

Ms. Dauss directed that inmates testing positive for COVID-19 should be

housed together and those who tested negative should be housed in isolation

cells because they were likely already exposed to the virus. Id. at 2. At no point

in March or April 2020 was an inmate who tested positive for COVID-19 placed

in a dorm with inmates who were not known to have tested positive for the virus.

Id. In order to separate inmates who had tested positive for COVID-19 or who

had COVID-19 symptoms from those who did not have COVID-19, Pendleton

staff kept the two groups in separate housing units. Dkt. 121-3 at 1.

C. Mr. Windom's Housing Placement and COVID-19 Illness

During the first two weeks of April 2020, Mr. Windom was assigned to

K Dorm. Dkt. 121-1 at 39. At some point during those two weeks, an inmate who

Mr. Windom believes had COVID-19 was moved from the American Legion Dorm

to K Dorm. Id. at 40-41. Mr. Windom suspects the inmate had COVID-19

because within a day or two of his move to K Dorm, the inmate had a heart attack

or stroke and was transported to an area hospital. Id. at 40-42.

While Mr. Windom was living in K Dorm, Defendants Reagle and Alsip

spoke with the inmates there to update them on facility lockdowns, controlled

movements, and meal delivery. Id. at 44-45. Mr. Windom stated Defendants

Reagle and Alsip told the inmates that nobody would be moved and none of the

dorm populations would be mixed. Id. at 46. It was Mr. Windom's understanding

that those actions were intended to keep inmates separated in order to prevent

the spread of COVID-19. Id. at 45-46.

In April 2020, Pendleton staff temporarily moved some of the inmates who

had been in one-man cells to Pendleton's gymnasium as a precaution in order to

clean the facility and isolate inmates with COVID-19 from those who did not

have the virus. Dkt. 121-2 at 2. Mr. Windom was moved into the gym after he

registered an elevated temperature. Dkt. 121-1 at 20, 43, 46-47. While in the

gym, Mr. Windom asked Ms. Stamper if he could go to a cell by himself because

he felt unsafe due to the presence of inmates with COVID-19 symptoms and

others on breathing machines. Id. at 50. However, Ms. Stamper was not involved

in moving inmates from one housing unit to another. Dkt. 121-3 at 2.

On April 15, Indiana Health Department staff came and tested all of the

inmates in the gym. Dkt. 121-1 at 20.

On April 17, there was a riot in the gym, and Mr. Windom punched a

guard. Id. at 22-23. As a result, Pendleton staff moved Mr. Windom from the

gymnasium to a holding cell in another dorm. Id. at 22-23, 53-54. This move

contradicted guidance Mr. Windom heard health department officials give

Pendleton staff on April 15 directing them not to move any prisoners until they

received test results. Id. at 51-54.

On April 20, Mr. Windom received a positive COVID-19 result from his

April 15 test. Id. at 23-24, 51. He experienced shortness of breath, back pain,

and a lack of energy. Id. at 24.

III.

Discussion

Mr. Windom is proceeding on Eighth Amendment conditions-of-

confinement and state law indemnification claims.

A. Conditions of Confinement

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).

In assessing the subjective prong, the question is whether the defendants

"responded reasonably to the risk, even if the harm ultimately was not averted."

Farmer, 511 U.S. at 844. Here, Mr. Windom was moved to the gymnasium at

medical staff's direction when he was already experiencing COVID-19 symptoms

but before testing was available. Dkt. 121-1 at 19-20, 23-24, 43, 46-47, 51.

Because testing was not available until April 15, there is no evidence in the

record that defendants knowingly housed Mr. Windom with a Covid-infected

inmate. Rather, with one exception, the undisputed evidence shows that

Defendants moved inmates around the facility under the guidance of Indiana

Department of Health officials and IDOC's Medical Director in order to keep

inmates who had no symptoms or negative test results isolated from those, like

Mr. Windom, who had COVID-19 symptoms or positive test results. Dkt. 121-2

at 2. The single exception to the defendants' compliance with department of

health officials is their movement of Mr. Windom from the gymnasium to a

holding cell after a riot in the gymnasium on April 17 three days before his test

results arrived on April 20. This move contradicted guidance Mr. Windom heard

health department officials give Pendleton staff on April 15 directing them not to

move any prisoners until the they received test results. Dkt. 121-1 at 51-54.

Because Mr. Windom's April 15 test came back positive, however, the April 17

move cannot be said to have caused any injury to Mr. Windom, nor is there any

evidence in the record that this move exposed Mr. Windom to additional known

risks.

Because prison officials were trying keep uninfected inmates separate from

those who likely already had COVID-19, no reasonable jury could conclude that

Defendants' actions placing Mr. Windom in the gymnasium with other

symptomatic inmates "approached a total unconcern" for his welfare. Donald,

982 F.3d at 458; Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (vacating

preliminary injunction because the inability to implement social distancing

measures at a prison was merely "the inability to take a positive action," which

"does not constitute a state of mind more blameworthy than negligence") (cleaned

up); see also Shipp v. Lobenstein, No. 24-2798, 2025 WL 1139257, *3 (7th Cir.

Apr. 17, 2025) (affirming summary judgment for warden who kept plaintiff with

COVID-19 positive inmate under "cohorting policy" on the basis that warden

relied on medical expert's opinion about reducing risk of an outbreak) (citing

Mays v. Dart, 974 F.3d 810, 823 (7th Cir. 2020)).

Moreover, courts have consistently afforded prison officials more leeway

with respect to social distancing efforts due to security needs and the physical

constraints of the facilities. See Swain, 958 F.3d at 1089; Hope v. Warden York

Co. Prison, 972 F.3d 310, 330 (3rd Cir. 2020) (citing CDC, Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and

Detention Facilities, which provided that social-distancing "strategies will need to

be tailored to the individual space in the facility and the needs of the residents

and staff."). Mr. Windom was moved out of the gym to a holding cell due to his

participation in a violent riot. Thus, rather than displaying deliberate indifference

to his risk of illness, State Defendants were trying to restore order and promote

safety.

Also, where prisoners' COVID-19 claims have been defeated on the

subjective prong of the deliberate indifference inquiry, it was because prison

officials had responded reasonably to the virus through a variety of protective

measures. See Wilson, 961 F.3d at 841 (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) (listing similar measures); and

Swain, 958 F.3d at 1090 (listing similar measures). Here, Pendleton staff took

several steps to protect inmates from contracting COVID-19. In addition to

physical separation when possible, Defendants implemented testing by the

Indiana Department of Health as soon as it was available. Dkt. 121-2 at 2.

Defendants also implemented guidelines established by the Indiana Department

of Health and the CDC regarding cleanliness and handwashing. Id. at 1-2. Mr.

Windom has designated no evidence from which a jury could reasonably find

that Defendants were deliberately indifferent to whether he was exposed to and

contracted COVID. Defendants' motion, therefore, must be granted.3

B. State Law Indemnification Claim

With Mr. Windom's constitutional claims staged for dismissal, the Court

has discretion whether to exercise supplemental jurisdiction over his remaining

state-law claims. 28 U.S.C. § 1367(c) ("The district courts may decline to exercise

supplemental jurisdiction over a claim . . . if . . . the district court has dismissed

all claims over which it has original jurisdiction . . . ."); see also Carlsbad Tech.,

Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) ("A district court's decision whether

to exercise supplemental jurisdiction after dismissing every claim over which it

3 Because the Court has concluded that Defendants did not violate Mr. Windom's

rights, it need not address their argument that they are entitled to qualified immunity.

had original jurisdiction is entirely discretionary."). "Indeed, when the federal

claims are dismissed before trial, there is a presumption that the court will

relinquish jurisdiction over any remaining state law claims." Dietchweiler by

Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (emphasis added).

When deciding whether to exercise supplemental jurisdiction, "'a federal

court should consider and weigh in each case, and at every stage of the litigation,

the values of judicial economy, convenience, fairness, and comity.'" City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (internal quotation

marks and quoted authority omitted).

In the Seventh Circuit, "the usual practice is to dismiss without prejudice

state supplemental claims whenever all federal claims have been dismissed prior

to trial." Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999); see also Sharp Elecs.

v. Metropolitan Life Ins., 578 F.3d 505, 514 (7th Cir. 2009) ("Normally, when all

federal claims are dismissed before trial, the district court should relinquish

jurisdiction over pendent state-law claims rather than resolving them on the

merits.") (internal quotation marks and quoted authority omitted). Exceptions to

the general rule exist: "(1) when the statute of limitations has run on the pendent

claim, precluding the filing of a separate suit in state court; (2) substantial

judicial resources have already been committed, so that sending the case to

another court will cause a substantial duplication of effort; or (3) when it is

absolutely clear how the pendent claims can be decided." Davis v. Cook County,

534 F.3d 650, 654 (7th Cir. 2008) (internal quotation marks and quoted

authority).

No circumstance in this case overcomes the presumption that the Court

should relinquish jurisdiction over Mr. Windom's state-law claims.

The statute of limitations is not a factor. Both federal and state law toll the

relevant limitation period when claims are pending in a civil action (except in

limited circumstances not present here). See 28 U.S.C. § 1367(d); Ind. Code §

34-11-8-1; see also Hemenway v. Peabody Coal Co., 159 F.3d 255, 266 (7th Cir.

1998).

Neither the parties nor the Court has expended significant resources on

the pending state-law claims. Further, comity always favors allowing state courts

to decide issues of state law. Having resolved all claims within its original

jurisdiction, the Court exercises its discretion and relinquishes supplemental

jurisdiction over Mr. Windom's state law claims.

IV.

Conclusion

Defendants' motion for summary judgment is granted. Dkt. [120]. The

Court relinquishes supplemental jurisdiction over Mr. Windom's state law

claims.

Final judgment shall issue by separate entry.

SO ORDERED.

Date: 9/30/2025 Sjamnu Patnaik Hanbore

James Patrick Hanlon

United States District Judge

Southern District of Indiana

11

Distribution:

AARON D. WINDOM

109441

NEW CASTLE - CF

NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels

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P.O. Box E

NEW CASTLE, IN 47362

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