# ATES

> District Court, S.D. Indiana · December 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11215209

## Case

- **Full name:** Roy Edward Ates, Jr. v. United States of America
- **Court:** District Court, S.D. Indiana
- **Decided:** December 5, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ROY EDWARD ATES, JR., )
)
Plaintiff, )
)
v. ) No. 2:21-cv-00418-JPH-MG
)
UNITED STATES OF AMERICA, )
)
Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Roy Edward Ates, Jr., is a federal prisoner. He alleges that prison officials'
negligence caused him to become infected with COVID and that prison personnel
were negligent in providing him medical treatment thereafter. Defendant, the
United States, has moved for summary judgment. Dkt. [130]. 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
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.
Background
A. Factual Background
Because Defendant has moved for summary judgment under Rule 56(a),
the Court views and recites the evidence in the light most favorable to Mr. Ates
and draws all reasonable inferences in his favor. Khungar, 985 F.3d at 572–73.
From July 1, 2020 to October 22, 2020, Mr. Ates was housed in the A1
unit of the United States Penitentiary – Terre Haute (USP) within the Federal
Correctional Complex - Terre Haute (FCC). Dkt. 130-6 ¶ 4; dkt. 130-50.

In January 2020, the Bureau of Prisons (BOP) issued its first
memorandum and recommendations about COVID, dkt. 130-8, which was
followed by additional recommendations, memoranda, and bulletins. Dkts. 130-
9 to 130-26 (various BOP memoranda regarding COVID from February 29
through August 31, 2020). BOP guidance regarding COVID was drafted based
upon public policy considerations of safety, security, health (physical and
mental) of inmates and staff, facility population capacities, availability of medical
equipment and supplies, and evolving scientific and medical data. Dkt. 130-2 at

¶ 7. The recommendations and guidance were not formally adopted as rules or
regulations so that each BOP facility had discretion to implement the guidance
based on the unique needs and conditions in them. Id. at ¶ 8.
On August 18, 2020, a USP A1 unit inmate known as "Baltimore" was
taken to a medical appointment outside FCC – USP. Dkt. 144-4 at 2. Mr. Ates
believes that proper protocols were not followed regarding screening, testing, or
isolating "Baltimore" before and/or after this appointment. Id.; dkt. 143 at 9-10.
On August 19, "Baltimore" tested positive for COVID. Dkt. 130-1 at 51. On

that day, Mr. Ates was working in the USP laundry, where the staff and inmates
did not wear masks because of the heat in the facility. Dkt. 144-4 at ¶ 5. When
staff learned of "Baltimore"'s positive test, Mr. Ates and all other A1 unit inmates
were taken from the laundry to their cells but were not immediately tested for
COVID. Id. at 3 ¶ 11. The A1 unit also was placed on lockdown at that time and
was designated as a COVID isolation unit. Dkt. 130-27 at ¶ 16.

On August 21 or 22, Mr. Ates began experiencing symptoms consistent
with a COVID infection, including body aches, fever, diarrhea, vomiting,
headaches, chills, coughing, sore throat, runny nose, and a loss of taste and
smell. Dkt. 144-1 at 63-65. For the next several days, USP staff came by the cells
in A1 unit and took inmates' temperatures and sometimes asked about
symptoms but did not provide any other treatment or medication to inmates. Id.
at 69.
On August 27, 2020, Mr. Ates and the other inmates in the A1 unit were

tested for COVID and 34 of 76 inmates tested positive. Dkt. 130-27 at ¶¶ 14-15;
dkt. 130-33.
On September 9, 2020, Mr. Ates was seen by Nurse Practitioner Casey
Frank. Dkt. 130-34. The medical record indicates that he had been symptom
free for approximately 10 days at that point and that his COVID illness was
resolved. Id.
Mr. Ates states that ever since his COVID infection, he has had trouble
breathing and engaging in athletic activities. Dkt. 144-1 at 103, 115.

On October 30, 2020, Dr. L. Rogatnick evaluated Mr. Ates based on a
complaint of sleep apnea. Dkt. 130-35. At this visit, Dr. Rogatnick noted that
Mr. Ates's pulmonary function was "within normal limits," that his oxygenation
was 95%, and respirations were 16 per minute. Id. Dr. Rogatnick ordered a sleep
study for Mr. Ates. Id.
On December 7, 2020, Mr. Ates was seen by Nurse K. Lubbehusen to

evaluate his complaints of a cough and cold or flu symptoms. Dkt. 130-36. His
oxygenation was 98%. Id. A COVID test from this date was negative. Dkt. 130-
37. After consultation with NP Frank, a chest x-ray was ordered for Mr. Ates,
which was taken on December 8. Dkt. 130-38. Dr. William Wilson and a
radiologist evaluated the x-ray and found, "[n]o acute cardiopulmonary disease.
Lungs are clear." Dkt. 130-3 at ¶ 31. Dr. Wilson found no need for follow-up care
after reviewing the x-ray. Id. After his visit with Nurse Lubbenhusen, Mr. Ates
was placed in a quarantine unit at USP until December 31, 2020, and was moved

back to his normal cell after a second COVID test also came back negative. Dkt.
130-1 at 90; dkt. 130-6 at 2.
Mr. Ates's sleep study was conducted on May 25-27, 2021. Dkt. 130-43.
Mr. Ates was diagnosed with severe obstructive sleep apnea. Id. at 2. Afterwards,
Mr. Ates was issued a CPAP machine. Dkt. 130-44.
On October 3, 2023, Dr. Wilson examined Mr. Ates during a chronic care
visit. The medical record states in part, "he works vigorously with the
maintenance department here and also in the snow crew. Currently he is

working in electrical work and busting concrete. He is able to do that with no
problems . . . ." Dkt. 130-46 at 1. His respirations were 14 per minute and his
oxygenation was 97%. Dr. Wilson's chest exam revealed "equal expansion, clear
to auscultation bilaterally. No rhonchi, no crackles, normal breath sounds." Id.
at 3. Dr. Wilson did order a follow-up chest x-ray, which was conducted on
November 9, 2023. Dkt. 130-48. No abnormalities were noted and the overall

impression was "[s]table/normal chest examination." Id.
Three days earlier, on November 6, Mr. Ates was seen by nurse A.
Murphree, complaining of shortness of breath. Dkt. 130-47. His respirations
were 20 per minute and his oxygenation was 100%. Id. Nurse Murphree noted
that Mr. Ates's lung sounds were "clear throughout." Id. Nurse Murphree also
conducted an EKG, which was normal. Id. Mr. Ates was not prescribed any
treatment and was told to "Follow-up at Sick Call as Needed." Id.
The last medical visit in the record is from March 19, 2024, when Mr. Ates

saw NP Frank. Dkt. 130-49. NP Frank's notes of Mr. Ates's pulmonary system
state, "Inspection WNL with normal thoracic expansion, normal diaphragmatic
excursion, Clear to auscultation without crackles, rhonchi, wheezing, or pleural
rub." Id. at 2. No cough was noted. Id. Mr. Ates stated he was continuing to use
his CPAP machine. Id. at 1.
Mr. Ates testified during his deposition that December 7, 2020, and
November 6, 2023, were the only two times he specifically sought medical care
for difficulty breathing. Dkt. 130-1 at 94. There were, however, other occasions

when he complained about difficulty breathing. Dkt. 144-4 at ¶ 19; Dkt. 130-1
at 177.
Defendant retained Dr. Alysse Wurcel as an expert witness. She is a
physician licensed in Massachusetts to practice as an internal medicine and
infectious disease specialist. Dkt. 130-5 at p. 1 ¶ 1. She has worked in

Massachusetts jails as an infectious disease specialist since 2013. Id. at p. 1. ¶
2. She has published over 100 articles in peer-reviewed publications, including
articles on COVID. Id. She also assisted Massachusetts sheriffs in their response
to COVID beginning in March 2020. Id. at p. 3.
Dr. Wurcel examined the discovery materials in this case and signed a
sworn declaration that concluded:
In summary, I think it is highly unlikely that the
plaintiff can tell who infected him with COVID-19. It is
highly unlikely [Baltimore] was the cause of the COVID-
19 cluster in August 2020. Mr. Ates does not have lung
damage. And the diagnosis of obstructive sleep apnea is
highly unlikely to be related to his minimally
symptomatic August 2020 COVID-19 infection.

Based on what I have reviewed, the BOP provided
evidence-based, guideline-concordant medical care to
plantiff [sic] in August 2020 and December 2020.

Dkt. 130-5 at p. 6. Although Dr. Wurcel wrote this report before receiving Mr.
Ates's medical records from after August 2023, she subsequently declared that
"[n]othing in these materials causes me to change the opinions and conclusions
I stated in my expert report." Id. at p. 2 ¶ 4.
During Dr. Wurcel's deposition, counsel for Mr. Ates asked Dr. Wurcel
about a study finding an association between sleep apnea and long COVID. Dkt.
144-2 at 150. Dr. Wurcel testified that she was not aware of that study and could
not give an opinion about it without having reviewed research methods and study
design. Id. at 152. Ultimately, she reaffirmed her opinion that there was not a
link between sleep apnea and long COVID. "And if they are related, it's

confounded by several other issues. I mean, just – he has a BMI of 39. That's
more predictive of obstructive sleep apnea than anything." Id. at 154.
B. Procedural Background
Mr. Ates filed his complaint against Defendant on November 8, 2021,
under the Federal Tort Claims Act ("FTCA"). Dkt. 1. Count 1 alleges that USP
staff were negligent per se because they didn't adhere to COVID protocols and
guidelines from the Centers for Disease Control and other organizations, related
to prevention and mitigation of transmission of the disease. Id. at 19. Count 2

alleges ordinary negligence for essentially the same reasons. Id. at 22. Count 3
alleges a violation of Defendant's duty to provide adequate medical care to
inmates. Id. at 24. Count 3 itself does not specify when the alleged inadequate
medical care was provided, but the "Facts" portion of the complaint states, "[a]s
of the date of the filing of this complaint, no medical evaluation, treatment, or
care has been provided by FCCTH medical staff in response to the December,
2020, medical triage request concerning the dysfunctional lung issues." Id. at
16. The Court screened the complaint on May 3, 2022, finding that it stated

negligence claims under the FTCA based on allegation "that officials at USP Terre
Haute failed to protect him against the virus and failed to treat him after he
contracted the virus . . . ." Dkt. 18 at 2.
Defendant moved to dismiss the complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Dkt. 33.
The Court granted the motion to dismiss as to Count 1 of the complaint,

negligence per se. Dkt. 43 at 18. The Court denied dismissal as to Counts 2 and
3, holding that Counts 2 and 3 could only proceed under a theory of gross
negligence. Id. at 19. The Court further limited the scope of those claims, finding
that Count 2 was limited to Mr. Ates's claim that he contracted COVID as a result
of the BOP's gross negligence when it did not screen or isolate an inmate named
"Baltimore" upon his return from an appointment with an outside medical
provider. Also, the Court stated that Count 3 of the complaint allowed a

reasonable inference that USP Terre Haute staff knew
of the health dangers associated with COVID-19
infections (including lung problems), knew that Mr. Ates
had tested positive for COVID-19, and knew that he was
complaining of symptoms consistent with a COVID-19
infection, yet failed to provide him with any treatment
or evaluation beyond giving him a COVID-19 test an
isolating him for 21 days.

Id. at 9.
After counsel was recruited for Mr. Ates, Defendant moved for summary
judgment. Dkt. 130.
III.
Discussion
A. Applicable Law
Mr. Ates alleges that the United States was negligent in preventing him
from being exposed to COVID and failing to provide him with adequate treatment
for medical conditions caused by COVID infection. Because this case is
proceeding under the FTCA, Indiana substantive law applies. 28 U.S.C.
§ 1346(b)(1); see also 28 Midwest Knitting Mills, Inc. v. United States, 950 F.2d

1295, 1297 (7th Cir. 1991) ("[T]he FTCA incorporates the substantive law of the
state where the tortious act or omission occurred[.]"). Under Indiana law, “[t]he
tort of negligence consists of three elements: (1) a duty owed to the plaintiff by
the defendant; (2) a breach of that duty by the defendant; and (3) injury to the
plaintiff proximately caused by that breach.” Martin v. Ramos, 120 N.E.2d 244,
249 (Ind. Ct. App. 2019).
Indiana's COVID-19 immunity statute, however, provides that "a person is
immune from civil tort liability for damages arising from COVID-19: (1) on the

premises owned or operated by the person; (2) on any premises on which the
person or an employee or agent of the person provided property or services to
another person; or (3) during an activity managed, organized, or sponsored by
the person." Ind. Code § 34-30-32-6. "Arising from COVID-19" means alleged
injuries arising from either "(1) the actual, alleged, or possible exposure to or
contraction of COVID-19; or (2) services, treatment, or other actions performed
for COVID-19." Ind. Code § 34-30-32-2. Immunity does not apply "to a person
whose actions or omissions constitute gross negligence or willful or wanton

misconduct (including fraud and intentionally tortious acts) as proven by clear
and convincing evidence." Ind. Code § 34-30-32-7.
Thus, the United States's liability in this case for damages arising on its
property from COVID-19 is limited to circumstances where its conduct
constituted gross negligence or willful or wanton misconduct—just as it would

be if the United States were a private owner or operator of its premises. See 28
U.S.C. § 1346(b)(1); Ind. Code §§ 34-30-32-6, 34-30-32-7. To constitute gross
negligence, a plaintiff must prove that the defendant consciously breached
a duty owed with a reckless disregard of the consequences to another. N. Ind.
Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465-466 (Ind. 2003) (defining gross
negligence as "'[a] conscious, voluntary act or omission in reckless disregard of .
. . the consequences to another party.'" In other words, it is an "intentional
failure to perform a duty in reckless disregard of the consequences." McGowen

v. Montes, 152 N.E.3d 654, 661 (Ind. Ct. App. 2020). Whether an act or omission
constitutes gross negligence generally is a question of fact, but it may become a
question of law if the facts are undisputed and susceptible to only one
interpretation. Id.
B. Count 2 – Mr. Ates's Contracting COVID
In Count 2 of the Complaint, Mr. Ates alleges that he became infected with
COVID because the BOP failed to take reasonable steps to mitigate the risk of
Mr. Ates and other inmates being exposed to COVID. The United States argues

that it is entitled to summary judgment on Count 2 because Mr. Ates has not
designated evidence from which a jury could reasonably find that any conduct
of the BOP was a conscious, voluntary act or omission in reckless disregard of
Mr. Ates's health and welfare. The United States further argues that Mr. Ates
also has not designated evidence from which a jury could reasonably find
causation, that is, a causal link between the BOP's conduct and Mr. Ates

contracting COVID-19.
1. Breach
The United States argues that it is entitled to summary judgment because
Mr. Ates cannot meet the high standard of showing by clear and convincing
evidence that the BOP engaged in a conscious, voluntary act or omission in
reckless disregard of the consequences to Mr. Ates. Dkt. 131 at 19–21. Mr. Ates
responds that the BOP breached a duty owed to Mr. Ates when it allowed inmate
"Baltimore" to return from an outside medical appointment to the A-1 cellblock

without first being tested for COVID, and by returning Mr. Ates to the A-1
cellblock without testing him and other inmates, which would have enabled the
BOP to isolate inmates who were positive and keep them separate from inmates
who were not known to have COVID. Dkt. 143 at 8–13.
To show gross negligence, Mr. Ates must show that there was an
intentional breach by the BOP, that is, an intentional failure to perform a duty
in reckless disregard of the consequences. York v. Fredrick, 947 N.E.2d 969, 978
(Ind. Ct. App. 2011). And the intentional breach must be shown by "clear and

convincing evidence." Ind. Code § 34-30-32-7. Here, the designated evidence
shows that inmate Baltimore went to an outside medical appointment on August
18, 2020, was returned to the A-1 cellblock that same day. The next day, BOP
staff learned that he tested positive for COVID and put him in quarantine, away
from the other inmates. Mr. Ates has not designated evidence showing that BOP
officials knew or should have known that inmate Baltimore had close contact

with someone who had COVID while he was at his outside medical appointment,
or that he had COVID symptoms when he returned from that appointment. Nor
has Mr. Ates designated evidence that he was placed in a cell with an inmate
who BOP knew to be infected with COVID when Mr. Ates did not have COVID.
In short, Mr. Ates has not designated evidence from which a jury could find by
clear and convincing evidence that BOP personnel intentionally failed to perform
a duty in reckless disregard of the consequences by allowing inmate Baltimore
to return to cellblock A-1 after his outside appointment and thereafter returning

Mr. Ates to cellblock A-1.
As to Mr. Ates' argument that sending him from the laundry back to
cellblock A-1 on August 19, 2020, without first testing him and other inmates
constituted gross negligence, the designated evidence shows that this was
consistent with applicable BOP policies and procedures designed to mitigate the
spread of COVID infection. Dkt. 130-2 at 13-15; dkt. 130-04 at 2-3. Mr. Ates'
argument that BOP employees engaged in "careless, lazy, and inattentive
behavior" does not show by clear and convincing evidence that the BOP engaged

in a conscious, voluntary act or omission in reckless disregard of the
consequences to Mr. Ates. Finally, Mr. Ates designates no admissible evidence
in support of his contention that he shared a ventilation system with inmates
who had tested positive for COVID when he was returned to the A-1 cell block.
Even assuming that the BOP could have done more or acted differently

with rapid COVID tests or alternative quarantine or cohort arrangements, that
is not enough to meet the heightened breach standard. In sum, Mr. Ates has not
designated evidence from which a reasonable could conclude that BOP personnel
engaged in a conscious, voluntary act or omission in reckless disregard of the
consequences to Mr. Ates. York, 947 N.E.2d at 978.
2. Causation
The United States argues that it is entitled to summary judgment because
Mr. Ates has not designated evidence from which a jury could reasonably find

causation, that is, a causal link between the BOP's conduct and Mr. Ates
contracting COVID-19. Mr. Ates contends that causation was established by the
fact that he was brought to the A-1 cell block "without testing, separating
inmates, or quarantining anyone." Dkt. 143 at 12-13. Mr. Ates further argues
that he does not need a medical expert to establish causation because his
COVID-19 positive test established that he had contracted COVID-19. Id. at 12-
13.
"To prove causation, a plaintiff must present specific facts that would

demonstrate that defendant's allegedly negligent behavior caused the plaintiff's
injuries." Gearnhardt v. United States, No. 2:17cv186-JRS-DLP, 2018 WL
5923923, at *5 (S.D. Ind. Nov. 13, 2018). Here, Mr. Ates has not designated
evidence allowing a reasonable jury to make that finding. First, the designated
evidence shows that Mr. Ates does not know how or when he became infected
with COVID-19, dkt. 130-1 at 62-63 (Ates Dep. at 61:7-62:20), so he cannot

connect the COVID infection he experienced in August 2020 with the BOP's
allegedly negligent behavior—allowing inmate Baltimore back into cellblock A-1
without first testing him and then returning Mr. Ates to cellblock A-1 without
first "testing, separating inmates, or quarantining anyone," dkt. 143 at 12.
Although he testified that he is "pretty sure" he contracted COVID-19 from
inmate "Baltimore" or from being returned to A-1 cell block on August 19, dkt.
130-1 at 62-63 (Ates Dep. at 61:7-23); dkt. 144-4 at 3 ¶¶ 10-12, that belief is
speculative.

The designated evidence shows that on the evening of August 21, 2020, or
the morning of August 22, 2020, Mr. Ates began experiencing symptoms
consistent with COVID-19 infection. [Dkt. No. 130-1 at 63-66 (Ates Dep. at
62:21-65:8).]. His symptoms lasted 5-6 days and he tested positive for COVID-
19 on August 27, 2020. Id. at 66, 172 (Ates Dep. at 65:9-17, 171:15-16); 170-
171 (Ates Dep. at 169:23-170:3); Dkt. 130-3 at 8 (Wilson Decl. ¶ 26); Dkt. 130-
33 at 1 (Ex. 27 at 1). Mr. Ates has not designated evidence that he did not have
COVID-19 on August 18-19 before he was in close contact with inmate Baltimore

and returned to the A-1 cell block. Dkt. 144-4 at 3 ¶ 13 ("Once the A-1 housing
unit was locked down, testing of the A-1 inmates did not begin until August 21,
2020."); dkt. 143 at 9 ("Mr. Ates should have been tested at the laundry where
he was working . . . prior to being taken back to A-1 block."). Given that the
incubation period for COVID-19 is up to 14 days, dkt. 130-19, Mr. Ates could
have contracted COVID-19 anytime within up to two weeks before August 21 or

22 when he first began experiencing symptoms. During those two weeks, Mr.
Ates came into contact with numerous individuals, any one of whom could have
been the source of his COVID-19, including the other inmates who he regularly
worked alongside in the laundry in close quarters, and who often didn't wear
masks. Dkt. 149-1 at 1-2 ¶¶ 3-5. So, there are many different sources from
which Mr. Ates could have contracted COVID within a broad timeframe, and no
designated evidence from which a jury could find that Mr. Ates became infected
as a result of the United States' actions during the two days in August 2020 that

underpin his claim. See dkt. 143 at 3–4, 8–9.
Against these facts, Mr. Ates has not designated evidence from which a
jury could find that he became infected with COVID-19 from being in close
contact with inmate "Baltimore" and returned to the A-1 cell block on August 19.
So, he cannot show that he contracted COVID on August 18 or 19 as a result of
the BOP not testing inmate "Baltimore" before and after his outside medical
appointment or from the BOP putting numerous inmates in the A-1 block
without testing, separating inmates, or quarantining anyone. Dkt. 143 at 10-

12.
Mr. Ates also has not designated expert witness testimony from which a
jury could reasonably find causation. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639,
643 (7th Cir. 2010) ("But when there is no obvious origin to an injury and it has
'multiple potential etiologies, expert testimony is necessary to establish
causation.'"). While expert testimony is one way to show causation, a plaintiff

can also show causation using circumstantial evidence. Whatever method of
proof is used, however, the plaintiff must present evidence from which a jury
could reasonably find that the COVID infection was caused by the defendant's
breach of the duty of care. Byrd v. Munoz, No. 24-1618, 2025 WL 943408 at *2
(7th Cir. Mar. 28, 2025) (unpublished); Gearnhardt, 2018 WL 5923923 at *5;
Brown v. Lehman, No. 21-CV-625, 2024 WL 1554100, at *5 (W.D. Wis. Apr. 10,
2024) (granting summary judgment to defendants in Eighth Amendment
deliberate indifference case where plaintiff-inmate only presented his own

speculation that he must have caught COVID from two positive-tested inmates
who were allowed to return to plaintiff's unit). Here, Mr. Ates designates no
such evidence, so it would be speculative to conclude that he contracted COVID
from Baltimore or as a result of being placed on lockdown in the A-1 unit.
Mr. Ates has not designated evidence from which a jury could conclude
when or how he contracted COVID-19. In the absence of such evidence, no
reasonable jury could conclude that Mr. Ates got COVID-19 as a result of the
BOP's actions. See Byrd, No. 24-1618, 2025 WL 943408 at *2 ("Yet nothing in

the record identifies how Byrd contracted COVID-19; absent is the causal link
between the defendants' conduct of improperly wearing masks and Byrd's
COVID-19 infection."); see also Gearnhardt, 2018 WL 5923923, at *5 ("To prove
causation, a plaintiff must present specific facts that would demonstrate that
defendant's allegedly negligent behavior caused the plaintiff's injuries.").
Similarly, a jury could not find causation from the mere fact that Mr. Ates

became infected with COVID-19 while living in the FCC-TH. See Byrd at *2;
Midwest Commerce Banking Co. v. Livings, 608 N.E.2d 1010, 1013 (Ind. Ct. App.
1993) ("[C]ausation may not be inferred merely from the existence of an allegedly
negligent condition.").
In sum, Mr. Ates has not designated evidence from which a jury could
reasonably find that the BOP's protocols, or any alleged failure to follow them,
caused Mr. Ates to contract COVID. So, even if Mr. Ates could show breach,
Defendant is entitled to judgment as a matter of law with respect to Count 2 of

the complaint.
C. Count 3 of the Complaint – Mr. Ates's Medical Care After
Contracting COVID

In Count 3 of the Complaint, Mr. Ates alleges that the BOP failed to provide
him with adequate medical care to treat conditions caused by COVID. There are
two timeframes at issue: (1) late August 2020 when Mr. Ates experienced COVID
symptoms; and (2) starting in December 2020 when Mr. Ates began experiencing
what he describes as lung dysfunction.
1. August 2020
Defendant argues that Mr. Ates is barred from pursuing any claim based
on the BOP's treatment of his COVID symptoms in August 2020. The Court's
screening order stated that FTCA claims were proceeding on the negligence
theory "that officials at USP Terre Haute . . . failed to treat him after he contracted
the virus . . . ." Dkt. 18 at 2. Defendant does not cite any part of the record
showing that the Court or Mr. Ates limited Count 3 to medical treatment he

received from December 2020 forward. Moreover, the Court did not effectively
dismiss this claim in its partial order of dismissal on February 2, 2023, as
Defendant argues. In declining to dismiss Count 3 of the Complaint, the Court
stated that Count 3's allegations supported "a reasonable inference that USP
Terre Haute staff . . . knew that Mr. Ates had tested positive for COVID-19, and
knew that he was complaining of symptoms consistent with a COVID-19
infection, yet failed to provide him with any treatment or evaluation beyond
giving him a COVID-19 test and isolating him for 21 days." Dkt. 43 at 8-9.

Therefore, the Court proceeds to evaluate on the merits whether the United
States is entitled to summary judgment on Mr. Ates's claims related to treatment
in August 2020.
During that timeframe, Mr. Ates had severe COVID symptoms for
approximately five to six days, during which nurses performed daily temperature
checks and inquired about symptoms but provided no other treatment. Dkt. 130-
1 at 63, 66-67. The nurses told Mr. Ates and other inmates that they could get
over-the-counter medication from the commissary, but guards told the inmates

that commissary was unavailable because their unit was on lockdown. Id. at 67.
By the time Mr. Ates had a follow-up nursing check on September 9, he reported
that he had been symptom-free for approximately 10 days. Dkt. 130-34 at 1.
To establish gross negligence, Mr. Ates must show "'[a] conscious,
voluntary act or omission in reckless disregard of . . . the consequences to
another party.'" N. Ind. Pub. Serv. Co., 790 N.E.2d at 465-466. Here, the record

shows that Mr. Ates had a typical bout with COVID, experiencing symptoms that
included body aches, fever, diarrhea, vomiting, and headaches, and recovered
from it quickly. "Millions of people in the United States have suffered from these
same symptoms. Most did not receive medical treatment; instead, like [Mr. Ates],
they rested at home and allowed their bodies to fight the infection." Stevens v.
Carr, 2021 WL 39542, at *6 (E.D. Wis. Jan. 5, 2021) (citing Cooper v. Casey, 97
F.3d 914, 916 (7th Cir. 1996) (dismissing Eighth Amendment deliberate
indifference claim at screening that was based on allegation defendants failed to

provide any treatment at all for COVID symptoms like Mr. Ates's, because
symptoms did not amount to objectively serious medical need).
Here, Mr. Ates has not designated evidence that he had symptoms showing
that he was at high risk for hospitalization or other severe COVID complications,
and does not otherwise explain how the BOP's decision to monitor him without
providing other treatment was "in reckless disregard of . . . the consequences to
[him]." N. Ind. Pub. Serv. Co., 790 N.E.2d at 465-466. While Mr. Ates had "to
handle his symptoms with no treatment", dkt. 143 at 13, he cites no authority

showing that there was a course of treatment the BOP should have followed other
than doing what it did—daily temperature checks and monitoring for severe
complications that would require hospitalization. Still, Mr. Ates contends that
the BOP should have done something else to treat him.
While the caselaw applying Indiana's COVID immunity statute is sparse,

Fluhr v. Anonymous Dr. 1, 234 N.E.3d 912, 920 (Ind. Ct. App. 2024), provides an
example of the standard of care applied during COVID under the immunity
statute. There, the Indiana Court of Appeals discussed the application of the
COVID-19 immunity statute to a claim of medical negligence. The court found
that the defendants' misdiagnosis of a patient suffering a stroke with COVID-19,
the ensuing delay in full examination and treatment as the patient was isolated
pending COVID-19 test results, and the patient's death caused by that stroke
did not constitute gross negligence under Indiana Code § 34-30-32-2. Id. at 915-

20. The Court concluded that "[t]he only reasonable conclusion reached from
the designated evidence is that [the decedent] received care in-line with that
expected during an uncertain time—April 2020—while the world grappled with
a global pandemic." Id. at 919. Applying Fluhr here, the relatively minimal care
provided to Mr. Ates during his bout with COVID—temperature checks and
monitoring for symptoms that would suggest more serious complications—
sufficed. That conclusion is bolstered by Dr. Wurcel's opinion that the treatment
Mr. Ates received during this timeframe was "evidence-based, guideline-

concordant medical care." Dkt. 130-5 at 6. Mr. Ates offers no expert opinion or
legal authority showing that the BOP was grossly negligent in treating Mr. Ates's
COVID symptoms in August 2020.
In sum, the record demonstrates that when Mr. Ates had COVID in August
2020, he was not at high risk for hospitalization or other severe COVID
complications. Instead, he briefly experienced symptoms commonly associated

with COVID that were usually left untreated. Regarding the treatment provided
by the BOP, Mr. Ates has not shown an "intentional failure to perform a duty in
reckless disregard of the consequences." McGowen, 152 N.E.3d at 661.
2. December 2020 forward
Mr. Ates next argues that the BOP failed to treat his COVID-related
symptoms and conditions from December 2020 forward, which led to long
COVID or lasting lung dysfunction. The United States argues that it is entitled
to summary judgment because Mr. Ates cannot show that the BOP was grossly

negligent in treating him.
The designated evidence shows that BOP medical personnel examined
Mr. Ates, including his breathing and lungs, on numerous occasions from
December 2020 forward. Dkt. 130-1 at 91-92; 97-98; see also Dkt. 130-3 at 9;
12-13. On December 7, 2020, Mr. Ates was seen by Nurse K. Lubbehusen who
examined Mr. Ates, took his vitals and temperature, and measured his
respirations and oxygen saturation rate. Dkt. 130-3 at 9. Nurse Lubbehusen
administered a rapid COVID 19 test, which was negative, and ordered a chest

x-ray due to Mr. Ates's cough. Id. The chest x-ray was reviewed by a
radiologist, Dr. Farhad Khorashadi, who observed, among other things, that
Mr. Ates's "[l]ungs are clear." Id. Dr. Wilson reviewed the medical records
related to Mr. Ates's December 2020 medical visits and determined that no
further follow-up was needed. Id.
Dr. Wilson examined Mr. Ates during a chronic care clinical encounter

on October 3, 2023. Id. at 11. He reviewed Mr. Ates's charts, medications, and
radiology reports, and discussed with him his "various chronic conditions." Id.
Dr. Wilson's medical records reflect that during that visit, Mr. Ates "denies any
chest pain" and had "no major complaints". Id. Dr. Wilson also measured Mr.
Ates's respirations, oxygen saturation rate, and conducted a physical
examination which included examining Mr. Ates's chest. Id. Mr. Ates's
breathing sounded normal, and Dr. Wilson ordered a chest x-ray and EKG as
part of a routine screen. Id.

On November 3, 2023, Mr. Ates was seen by Nurse Murphee in response
to a sick call request. Id. at 12. Mr. Ates complained of being short of breath.
Nurse Murphee took his vitals, measured his respirations and oxygen
saturation, listened to his breathing, and performed an EKG. Id. Mr. Ates had
a chest x-ray on November 9, 2023, which was read by Dr. Justin Yoon. Id.
Dr. Yoon's notes recorded, among other things, that Mr. Ates's "lungs are
clear." Id.
On March 19, 2024, Mr. Ates was examined by FNP Frank for a chronic

care evaluation. Id. at 12. During that visit, FNP Frank discussed with Mr.
Ates his "various chronic issues." Id. FNP Frank listened to Mr. Ates's
breathing and did not observe any coughing, shortness of breath, or other
symptoms of lung dysfunction. Id. Dr. Wilson co-signed this exam.
Mr. Ates contends that he has lung damage caused by long COVID, and

the BOP did not sufficiently treat his condition. He has not, however, designated
an expert opinion that he has lung damage and even if he did, he has not
designated an expert opinion that any lung damage was caused by the BOP's
treatment of his COVID symptoms in August 2020 as he alleges. Without expert
opinions, Mr. Ates cannot show that he has any lung, or other chronic condition,
was caused by his COVID infection in August 2020. See Torres v. City of Chicago,
2015 WL 12843889, *8 (N.D. Ill. 2015) ("A lay witness 'cannot, however, offer
medical opinions that require scientific, technical, or other specialized

knowledge,' 'give any complex medical diagnoses or opine on any long term
medical conditions.'") (citations omitted); Culbertson v. Mernitz, 602 N.E.2d 98,
104 (Ind. 1992) ("We therefore hold that, except in those cases where deviation
from the standard of care is a matter commonly known by lay persons, expert
medical testimony is necessary to establish whether a physician has or has not
complied with the standard of a reasonably prudent physician.").
Moreover, Mr. Ates has not designated evidence from which a jury could
find that USP Terre Haute officials engaged in "'[a] conscious, voluntary act or

omission in reckless disregard of . . . the consequences to [Mr. Ates].'" N. Ind.
Pub. Serv. Co., 790 N.E.2d at 465-466. This applies as well to Mr. Ates's sleep
apnea, to the extent Mr. Ates argues that the BOP was negligent in treating that
condition. The designated evidence shows that Mr. Ates was consistently seen
by BOP medical staff, both for regularly scheduled "chronic care" examinations
and in response to complaints of specific symptoms. During these

appointments, medical staff routinely took his vitals, measured his respirations
and oxygen saturation, and listened to his breathing. There were also multiple
instances when various medical staff ordered and reviewed x-ray images of Mr.
Ate's chest and lungs and concluded that neither the images nor Mr. Ate's
symptoms warranted referral to a pulmonologist.
The designated evidence, including thousands of pages of Mr. Ates'
medical records, the declaration of Dr. Wilson, the x-ray images, and Mr. Ates'
deposition testimony and discovery responses, was reviewed by Defendant's

expert, Dr. Wurcel. Dr. Wurcel opined that the BOP's medical treatment of Mr.
Ates from December 2020 forward was "evidence-based, guideline-concordant
medical care". Dkt. 130-5 at 6. In reaching this conclusion, she further opined
that she "would not classify Mr. Ates as having 'severe debilitating lung damage.'"
Id. Considering Dr. Wurcel's opinions, no reasonable jury could find an
"intentional failure to perform a duty in reckless disregard of the consequences"
with respect to the BOP's treatment of Mr. Ates's medical conditions from
December 2020 forward. McGowen, 152 N.E.3d at 661.

Mr. Ates argues that Dr. Wurcel's expert opinion on whether Mr. Ates has
lung dysfunction is not reliable and should not be considered because Dr. Wurcel
is not qualified to offer such opinion. Specifically, "Dr. Wurcel admitted that
lung dysfunction is not within her expertise, and that if any of her infectious
disease patients have breathing issues she refers them out to a pulmonologist
for evaluation." Dkt. 143 at 15 (Mr. Ates's summary judgment brief).

Federal Rule of Evidence 702 requires the Court to "ensure that any and
all scientific testimony or evidence admitted is not only relevant, but reliable."
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). The Court has
broad discretion in making a determination on the admissibility of expert
testimony and is not required to resolve any factual issues in favor of the non-
moving party simply because the issue has arisen in the context of a motion for
summary judgment. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43 (1997).
See also Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009). The

proponent of expert testimony bears the burden of demonstrating its
admissibility. Id. at 705.
The Court must engage in a three-step analysis when fulfilling its
"gatekeeping obligation" under Rule 702 and determine: "whether the witness is
qualified; whether the expert's methodology is scientifically reliable; and whether
the testimony will 'assist the trier of fact to understand the evidence or to
determine a fact in issue.'" Gopalratnam v. Hewlett–Packard Co., 877 F.3d 771,
779 (7th Cir. 2017) (quoting Myers, 629 F.3d at 644). "'Whether a witness is

qualified as an expert can only be determined by comparing the area in which
the witness has superior knowledge, skill, experience, or education with the
subject matter of the witness's testimony.'" Gayton v. McCoy, 593 F.3d 610, 616
(7th Cir. 2010) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.
1990)). "'Ordinarily, courts impose no requirement that an expert be a specialist
in a given field, although there may be a requirement that he or she be of a

certain profession, such as a doctor.'" Id. at 617 (quoting Doe v. Cutter Biological,
Inc., 971 F.2d 375, 385 (9th Cir. 1992)). Ultimately, "[t]he question [the Court]
must ask is not whether an expert witness is qualified in general, but whether
h[er] qualifications provide a foundation for h[er] to answer a specific question."
Id.
Here, Dr. Wurcel's testimony and expert materials, dkt. 130-5, establish
that she is an experienced physician licensed to practice internal medicine and
treat infectious diseases. Through her training and experience, she is able to

recognize symptoms of severe lung damage that would require a referral to a
specialist, like a pulmonologist. She testified, "I know when someone has severe
lung damage. I mean, in terms of their oxygenation saturation, in terms of lots
of other things, an internal medicine doctor can know when someone has severe
lung damage." Id. at 101. Explaining the basis for such knowledge, Dr. Wurcel
testified:
I guess, like, this is the existential infectious diseases
debate that you get into, in that we are doctors of
everything. And if there's an infection of the lungs, it's
called a pneumonia, and COVID causes, in some
people, an infection of the lungs. And so, like, I'm not a
lung doctor, but I am a lung doctor when an infection is
in it. So any infection hits the lungs, then I'm a lung
doctor.
Id. at 94. She further explained that "you don't send every person that believes
they have something to a specialist. The internal medicine doctor has a certain
level of understanding to triage." Id. at 97. Dr. Wurcel further testified: "I would

be surprised if [the BOP] got pulmonary function tests because the original chest
x-ray and the original – [Mr. Ates] never had any evidence of low oxygenation
other than during the obstructive sleep apnea episodes, and so the pulmonary
functions test wouldn't recreate, like, the sleep situation." Id. at 82. Moreover,
from her clinical experience, a patient would only be referred for a pulmonary
functions test after a diagnosis of asthma or observable symptoms like
"intractable coughing [] wheezing or rhonchi or something else." Dkt. 144-2 at
82. Dr. Wurcel explained that internal medicine doctors are ordinarily the source

of referrals to pulmonologists, that is, patients are referred after an internist
observes signs of lung damage/dysfunction. Dkt. 144-2 at 99.
Here, from the medical records, Dr. Wurcel observed multiple exams when
Mr. Ates's lungs were clear and his pulse oximetry readings were good. Id. at 91.
Dr. Wurcel further opined that from these and other objective symptoms
documented in the medical records, "any internal medicine doctor would look at
this case and say this man does not have severe lung damage." Id. at 98.
While Dr. Wurcel is not a pulmonologist and does not hold herself out to

be a specialist on lung dysfunction, her training and experience provide
sufficient foundation for her to opine that, based her review of Mr. Ates's
deposition transcript, discovery responses, and medical records, dkt. 103-5, Mr.
Ates did not have severe lung damage. Gayton, 593 F.3d at 617. This opinion
supports her conclusion that the BOP provided Mr. Ates "evidence-based,
guideline concordant medical care". As Dr. Wurcel aptly explained, internal

medicine doctors like her regularly make the initial assessment as to whether a
patient has symptom that warrant referral to a specialist, such as a
pulmonologist. Dr. Wurcel unequivocally opined both in her written report and
during her deposition that, based on information in Mr. Ates's medical records,
she saw no indication that he did in fact have lung damage, or any basis for
referring him to an outside specialist for further evaluation.
Mr. Ates contends that Dr. Wurcel did not know about or did not take into
consideration his claim that his medical records often failed to reflect his

complaints of breathing problems. Even accepting Mr. Ates's claim at face value,
as the Court must on summary judgment, it does not warrant rejection of Dr.
Wurcel's opinions. It was made clear during Dr. Wurcel's deposition that
objective evidence, such as Mr. Ates's oxygenation levels and x-rays, supported
her conclusion that he did not have lung damage or need to be referred to an
outside specialist for further testing. Mr. Ates also admitted during his deposition
that he only put in two healthcare requests directly related to complaints of
difficulty breathing. Moreover, after Dr. Wurcel had written her original report,

she submitted a declaration stating that even after reviewing Mr. Ates's
deposition, wherein he stated that his medical records did not accurately reflect
his repeated complaints of breathing problems, she adhered to the opinions
stated in her expert report. Dkt. 130-5 at ¶ 4.
Finally, the Court notes that it is not always entirely clear whether Mr.

Ates is seeking to pursue claims of inadequate medical treatment specifically
related to breathing difficulties, or whether he more generally asserts that he has
long COVID and needs to be treated accordingly.1 In either case, Mr. Ates
presents no expert testimony as to what different treatment he should be
receiving. In part, he continues to argue that his sleep apnea could be related to
having long COVID. But, if it is, it also is undisputed that that condition is being
adequately addressed by USP medical staff and through the provision of a CPAP
machine.

In sum, Mr. Ates has not designated evidence from which a jury could find
that USP Terre Haute medical personnel engaged in "'[a] conscious, voluntary
act or omission in reckless disregard of . . . the consequences to [Mr. Ates].'" N.
Ind. Pub. Serv. Co., 790 N.E.2d at 465-466. The United States is therefore
entitled to summary judgment on Count 3 of the complaint.
IV.
Conclusion
Defendant's motion for summary judgment is GRANTED. Dkt. [130]. Final
judgment shall now issue, consistent with this Order and the Court's order
partially granting Defendant's motion to dismiss, dkt. 43.

1 Mr. Ates during his deposition mentioned having "brain fog," which he also contends
might be a sign of long COVID. Dkt. 130-1 at 93.
SO ORDERED.
Date: 12/5/2025 Sjamu Patrick ltawloe
James Patrick Hanlon
United States District Judge
Southern District of Indiana

Distribution:
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11215209. Public record. Not legal advice.