DOUGLAS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MONWELL DOUGLAS, )

)

Plaintiff, )

)

v. ) No. 1:23-cv-01745-TWP-CSW

)

TRICIA PRETORIUS, )

DAVID PLATT, )

KEITH HARTZELL, )

JACOB SERVIZZI, )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendants Tricia Pretorius, David Platt, Keith Hartzell,

and Jason Servizzi (together "Defendants") Motion for Summary Judgment (Dkt. 50) and Motion

to Continue FPTC and Jury Trial (Dkt. 58). Also pending are preliminary motions filed by Plaintiff

Monwell Douglas ("Mr. Douglas"); that being a Motion for Clarification Concerning Pretrial

Scheduling Discovery Correspondence (Dkt. 37) and Motion for extension of time to file Response

to Motion for Summary Judgment (Dkt. 54). Mr. Douglas, a former inmate at Plainfield

Correctional Facility ("PCF") initiated this action alleging constitutional violations related to

asbestos exposure at the PCF gymnasium. (Dkt. 2). After screening his Complaint, the Court

allowed Mr. Douglas to proceed with Eighth Amendment deliberate indifference claims and

Indiana negligence claims against four defendants. (Dkt. 8). For the reasons explained in this

Order, the Defendants' motion for summary judgment is granted, the motion for continuance is

denied as moot, and Mr. Douglas' preliminary motions are granted in part and denied in part.

I. PRELIMINARY MOTIONS

Before Defendants moved for summary judgment, Mr. Douglas filed a Motion for

Clarification Concerning Pretrial Scheduling Discovery Correspondence (Dkt. 37) in which he

asked the Court to clarify whether he could use any admissions he received from Defendants in

discovery in his summary judgment response and he asked the Court to appoint an attorney to

assist him. (Dkt. 37). The motion is granted to the extent that the Court clarifies that Mr. Douglas

is permitted to use discovery in response to a motion for summary judgment. However, his request

for counsel is denied for the reasons the Court stated in its October 11, 2024, Order denying

counsel. See Dkt. 18. Applying the standard from Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007), the

Court discussed that Mr. Douglas could competently represent himself as he has a bachelor's

degree, was able to articulate his claims coherently, was aware of the factual basis for his claims,

and could move for extensions of time as needed. Id. at 3.

Additionally, the Court finds that it would not have been in the interest of justice to recruit

counsel, as this case did not present a particularly close call with respect to whether Defendants

acted with deliberate indifference or were negligent. Watts v. Kidman, 42 F.4th 755, 766 (7th Cir.

2022) (when weighing the limited resources related to recruitment of counsel, the court may

consider the merits of a plaintiff's claim).

Mr. Douglas's motion for extension of time, (Dkt. 54), is granted to the extent that the

Court has considered his response brief and designated evidence when ruling on Defendants'

motion for summary judgment.

II. 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).

III. 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. Douglas and draws all reasonable

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

A. Parties

Mr. Douglas was an inmate incarcerated at PCF from December 2020 until October 2024.

Dkt. 51-1 at 11 (Douglas Dep.). During that time, he was occasionally placed in the gymnasium at

PCF when it was used as temporary housing, and he would use it recreationally for a few hours at

a time. Id. at 7−10. Mr. Douglas was never assigned to work in the gym. Id. at 7.

Defendant Platt was the Recreation Coordinator at PCF. Dkt. 51-2 at 1. Defendant Hartzell

was the Deputy Warden at PCF. Dkt. 51-2 at 2. Defendant Pretorius was the warden at PCF. Dkt.

51-2 at 2. Defendant Servizzi served as the Physical Plant Manager at PCF. Dkt. 51-3 at 1. None

of the Defendants are trained in the identification, removal, or remediation of potential Asbestos

Containing Materials ("ACM") or asbestos. Dkt. 51-2 at 2; dkt. 51-3 at 2.

B. Identification of Asbestos at PCF

In 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. 51-

2 at 2. Mr. Platt or inmate employees would remove any loose tiles from the gym floor and place

them in a secure, separate room. Id. During this time, none of the Defendants were aware that the

materials in the gymnasium were potential ACMs. Dkt. 51-2 at 3; dkt. 51-3 at 1.

In May of 2022, PCF executive staff requested an inspection of the gymnasium's floor tiles

due to concerns shared by PCF staff members. Dkt. 51-2 at 2-3; dkt. 51-3 at 1-2. The IDOC

contracted with a licensed asbestos inspector at August Mack Environmental, Inc. ("August

Mack") to conduct a sampling and inspection of PCF's gym tiles. Dkt. 51-3 at 1; dkt. 51-4.

PCF executive staff, including Warden Pretorious and Deputy Warden Hartzell, decided to

close the gymnasium in early June 2022 while the inspection results were pending, and the

gymnasium remained closed until mid-to-late October 2022. Dkt. 51-3 at 2; dkt. 51-2 at 2.

August Mack emailed the inspection report to Warden Pretorius and others on June 22,

2022. (Dkt. 51-4 at 1). The report confirmed the existence of ACMs in the gymnasium, and noted

that "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." Dkt. 51-

4 at 4. August Mack recommended that a plan be developed to monitor the ACMs in good

condition until the tiles were removed. Id.

Based on the findings in the report, Warden Pretorius took steps to begin the remediation

process. (Dkt. 51-3 at 2). While the PCF gymnasium was shut down, an asbestos-certified team

came in to remediate the affected area. Id. The entire remediation process was undertaken

exclusively by outside parties; neither inmates nor PCF staff were involved. Id.; dkt. 51-2 at 2. Mr.

Platt developed other recreation opportunities for PCF inmates while ensuring they did not access

the gym during the remediation process. Dkt. 51-2 at 2. The gymnasium was reopened after August

Mack conducted another inspection and confirmed it was safe. Id. at 3.

Mr. Douglas testified that he has suffered from headaches and a persistent cough since he

was housed at PCF. Dkt. 51-1 at 16-17. When he filled out health care request forms at PCF,

healthcare staff would implement a "COVID protocol" wherein they would place him in isolation

without providing any other treatment. Id. at 18. No medical provider has identified the cause of

Mr. Douglas's cough or attributed any of his symptoms to asbestos exposure. Id. at 16-20.

IV. DISCUSSION

A. Eighth Amendment Standard

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).

The Court assumes for purposes of summary judgment that exposure to asbestos at PCF is

an objectively serious condition that could pose an excessive risk to Mr. Douglas's health.

Defendants argue that Mr. Douglas has failed to present evidence of an injury and that, regardless,

there is no evidence that they were deliberately indifferent to a risk of harm.

i. Failure to Present Evidence of Injury

The Prison Litigation Reform Act ("PLRA") 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. Douglas testified that he suffers from a cough and headaches, but he also

confirmed that no medical professional has attributed those symptoms to asbestos exposure. Dkt.

51-1 at 16-20. Instead, Mr. Douglas has "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); Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997) (affirming dismissal of prisoners' Eighth

Amendment asbestos exposure claim where they did not show requisite physical injury); Lord v.

Beahm, 952 F.3d 902, 905 (7th Cir. 2020) ("Lord's claim fails on the basic proposition that he has

sued for damages under § 1983 and alleged a constitutional tort (an Eighth Amendment violation)

without then developing evidence of a recoverable injury."). Mr. Douglas has failed to present any

evidence showing actual injury from the existence of ACMs in the gymnasium at 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). Defendants are entitled to summary judgment on

this basis.

ii. Deliberate Indifference

Alternatively, even if Mr. Douglas had presented sufficient evidence of injury, he still has

not shown that Defendants were deliberately indifferent to the risks of his exposure to asbestos.

Once Defendants were aware of the asbestos, they took reasonable steps to prevent inmates from

being harmed by it. Thomas, 2 F.4th at 720. After Warden Pretorious 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. 51-2 at 2-3, dkt. 51-3 at 1-2. They closed the gym while

awaiting the results of the August Mack report, and, once that report confirmed the existence of

ACMs, the gym remained closed to PCF inmates and staff while outside parties remediated the

issue. Dkt. 51-2 at 2-3; dkt. 51-3 at 2. Absent any evidence that Defendants ignored the risk of

exposing Mr. Douglas to asbestos, they are entitled to summary judgment. See Farmer, 511 U.S.

at 844 (explaining that prison officials "may be found free from liability if they responded

reasonably to the risk").1

B. State Law Negligence Claims

Mr. Douglas's conditions of confinement claims are dismissed, so the Court must decide

whether it should exercise supplemental jurisdiction over his state law negligence claims.

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.

The Court has discretion whether to exercise supplemental jurisdiction over a plaintiff's

state-law claims when the federal claims have been dismissed. Carlsbad Tech., Inc. v. HIF Bio,

Inc., 556 U.S. 635, 639 (2009); see also 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 . . . ."). 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 Chi. v. Int’l

Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 350 n.7 (1988)). "[J]udicial economy, convenience, fairness and comity may point to federal

retention of state-law claims ... when it is absolutely clear how the pendent claims can be

decided." Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 461 (7th Cir. 2020) (internal

quotation omitted). That is the case here.

Defendants argue that Mr. Douglas's state law claims are barred by the Indiana Tort Claims

Act ("ITCA"), which prohibits lawsuits against state employees for acts taken within the scope of

their employment. Ind. Code § 34-13-3-5(b); see also Celebration Fireworks, Inc. v. Smith, 727

N.E.2d 450, 452 (Ind. 2000). Conduct within the "scope of employment" is "conduct of the same

general nature as that authorized, or incidental to the conduct authorized." Celebration Fireworks,

Inc., 727 N.E.2d at 452. Generally speaking, "whether an employee's actions were within the scope

of employment is a question of fact to be determined by the factfinder." Burton v. Benner, 140

N.E.3d 848, 852 (Ind. 2020) (internal quotation omitted). But when the facts are undisputed, the

Court may decide as a matter of law whether the acts were in the scope of employment. See id.

(citing Cox v. Evansville, 107 N.E.3d 453, 460 (Ind. 2018)).

Here, Mr. Douglas sues the defendants for their response to the presence of asbestos in the

gymnasium at PCF. As described above, Defendants took various steps to remediate the asbestos

by closing the gymnasium, hiring a professional company to assess the area for the presence of

asbestos, and then hiring professionals to remove the ACMs. It is undisputed that all of these acts

were taken in the course of their employment. Accordingly, they are entitled to immunity under

the ITCA and Defendants’ motion for summary judgment is granted as to all claims.

V. CONCLUSION

Mr. Douglas's Motion for Clarification Concerning Pretrial Scheduling Discovery

Correspondence, Dkt. [37] is GRANTED in part and DENIED in part, and Motion for Extension

of Time to Respond to Defendants' Summary Judgment Motion, Dkt. [54], is GRANTED. The

Court considered his response and affidavit.

Defendants’ Motion for Summary Judgment, Dkt. [50], is GRANTED. Their motion for

Continuance of the Final Pretrial Conference and Jury Trial, Dkt. [58], is DENIED as moot.

The clerk is directed to update the docket to reflect Defendants’ names are Tricia Pretorius,

David Platt, and Jason Servizzi.

Final Judgment will issue in a separate order.

IT IS SO ORDERED.

Date: 6/24/2026 a ‘atten rath

Distribution: United States District Court

Southern District of Indiana

MONWELL DOUGLAS

P.O. Box 6789

Kokomo, IN 46904

All Electronically Registered Counsel