PERDUE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

JEFFERY K. PERDUE, )

)

Plaintiff, )

)

v. ) No. 2:24-cv-00165-JPH-MG

)

ROBERT E. CARTER, JR., et al., )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Jeffery Perdue alleges that Defendants left him for days in a cell

covered in human waste and ignored his requests for basic hygiene items and

linens for nearly two weeks while he was incarcerated at the Pendleton

Correctional Facility ("Pendleton"). Dkt. 2. He proceeds on Eighth Amendment

and state law claims. Dkt. 9 at 6. Defendants moved for summary judgment.

Dkt. 49. Mr. Perdue has moved for leave to file a notice of statement of material

facts in dispute. Dkt. 55. Mr. Perdue's motion, dkt. [55], is GRANTED. For the

reasons that follow, Defendants' motion for summary judgment, dkt. [49], is

GRANTED in part and DENIED in part.

I.

Claims Before This Court

As an initial matter, Defendants argue that they are entitled to summary

judgment because Mr. Perdue's claims are barred by the doctrine of collateral

estoppel. Dkt. 50 at 7-8; see In re Calvert, 913 F.3d 697, 701 (7th Cir. 2019)

(describing the elements of collateral estoppel).

Mr. Perdue concedes in his response in opposition to summary judgment

that summary judgment should be "granted as to defendants Michael Pfleeger,

James Boldman,1 Robert E. Carter, Jr., Dennis Reagle, Dennis Davis, Chance

Bishop, and Christina Conyers," dkt. 54 at 2, and does not address those

claims further, dkt. 54 at 11–16. Mr. Perdue has therefore "abandoned the

claim[s]" against those Defendants and may no longer pursue them. Maclin v.

SBC Ameritech, 520 F.3d 781, 788 (7th Cir. 2008); accord Crothersville

Lighthouse Tabernacle Church, Inc. v. Church Mut. Ins. Co., 168 F.4th 483, 489

(7th Cir. 2026) ("In the civil context, waiver is . . . the end of the line.").

Officers Alexander Koenig and Eric Salinas were not defendants in the

state court action and therefore did not move for summary judgment in that

case, dkt. 49-16; dkt. 49-17, so Mr. Perdue does not concede that they should

be granted summary judgment in this case, see dkt. 54 at 2. The deliberate

indifference claims against Officers Koenig and Salinas, and a negligence claim

against Officer Salinas, therefore proceed in this action. Dkt. 9 at 6.2

1 The complaint and screening order refer to this defendant as "Bowman," but the

parties have clarified that his name is James Boldman. See dkt. 54 at 2.

2 Officers Koenig and Salinas also argue that they are entitled to summary judgment

based on collateral estoppel. Dkt. 50 at 7-8. They cite a Seventh Circuit case applying

Illinois law, which requires in part that "the party against whom the estoppel is

asserted must have been a party to, or must be in privity with a party to, the prior

adjudication." Sapp v. Fox, 106 F.4th 660, 665 (7th Cir. 2024). But, as explained

above, Officers Koenig and Salinas were not defendants in the state court action. Dkt.

49-17; dkt. 49-18. Moreover, they have not cited any authority regarding collateral

estoppel under Indiana law or discussed whether any issues specific to them in this

case have been addressed in the state court case. Officers Koenig and Salinas

therefore are not entitled to summary judgment on this basis.

II.

Summary Judgment Standard

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

572–73.

A. The parties

Plaintiff Jeffrey Perdue is an inmate within the IDOC who was housed at

Pendleton in G cell house in Cell 6, 6-D range, during the events that gave rise

to this action. Dkt. 2 at 7.

Defendants Alexander Koenig and Eric Salinas were officers who escorted

Mr. Perdue to the feces-covered cell 6, 6-D range, on June 30, 2022. Id. at 5, 8.

B. June 30, 2022, incident with Officers Salinas and Koenig

June 30, 2022 was one of the hottest days of the year. Dkt. 49-10 at 16-

17. On that day, Mr. Perdue was escorted to the restrictive housing unit and

put in a holding cage where Officer Salinas stripped him down to his boxers

and his shoes. Id. at 8-9. Officer Salinas called for Officer Koenig to come help

him escort Mr. Perdue to his cell. Id. at 9.

The officers escorted Mr. Perdue to the third floor, where Officer Koenig

stayed at the front of the range to open the cell door while Officer Salinas

escorted him, shackled and cuffed, down to cell 6 on 6D. Id. at 9. When the cell

door opened, Mr. Perdue took one step into the dark cell and nearly vomited

because of how bad it smelled. Id. Mr. Perdue took a step back, and Officer

Salinas asked, "What's wrong?" Id. Mr. Perdue said, "It smells real bad in there,

man." Id.

Officer Salinas peeked his head in the cell and turned the light on. Id. As

soon as the light came on, Officer Salinas and Mr. Perdue both saw that almost

the entire floor was covered in a huge dry puddle of human waste, toilet paper,

and dry chunks of fecal matter. Id. at 9-10. The human feces continued up the

back of the wall about 2 feet near the toilet. Id. at 10.

Then Officer Koenig ran down to the cell and asked Officer Salinas, "what

are you doing in there?" Id. Officer Salinas said, "Man, look at this. We can't

leave him in there." Id. Mr. Perdue immediately turned to Officer Koenig and

said, "Man, please don't leave me in here. Please call for biohazard to come

clean the cell." Id. Officer Koenig looked at the cell and said "I know it's been

dry for a while, so it's safe for you to clean it. You can clean it yourself." Id. Mr.

Perdue said "There's no way I can clean this. I don't have anything." Id. Mr.

Perdue told Officer Koenig that it is against his rights to clean it; it's

inhumane—it's another human's waste. Id. at 11. Mr. Perdue also told Officer

Koenig that it would be bad for his health, and he would be scared for his life

in the cell. Id.

Mr. Perdue begged Officer Koenig to not leave him in there and to call

biohazard. Id. But Officer Koenig said that Mr. Perdue "can either stay in there

or [he] can get what happens." Id. at 11-12. Mr. Perdue explained that "what

happens" at Pendleton is that, when an inmate refuses to go into a cell to lock

up, he will get maced and tasered. Id. at 12. Because Officer Koenig said that,

Mr. Perdue was in fear of being harmed by the two officers telling him to clean

the cell himself. Id.

Then, Officer Koenig said, "well, we'll put some chemicals on it and we'll

give you a scrub brush" because "that's all [he's] allowed to give [Mr. Perdue]."

Id. Mr. Perdue then asked for a mop, towels, gloves to protect himself, and

personal protective equipment. Id. But Officer Koenig said he could not give

him those things. Id.

Officers Salinas and Koenig then escorted Mr. Perdue back down to a

shower holding cell while they gathered cleaning supplies—three or four full

bottles of green germicide, one bottle of red Neutral Floor, a handheld scrub

brush, a green scratch pad scrubber, and a stack of 40-50 paper towels. Id. at

12-13. Mr. Perdue had sought to have his cell cleaned by the biohazard team at

Pendleton, who would clean the cell with face shields, masks, ventilators,

goggles, latex gloves, yellow suits, and a backpack pressure washer with a

ShopVac to clean it up. Id. at 11. The biohazard team ultimately came to clean

his cell eight days later. Id. at 11.

After about an hour of gathering supplies, the officers escorted Mr.

Perdue back to the feces-covered cell and dumped the chemicals all over the

floor. Id. at 13-14. They left the scrub brush and paper towels for Mr. Perdue to

use to clean the cell, but all they did was smear the feces everywhere. Id. at 14.

The cell had no hot water and the cold water barely trickled out. Id. Mr. Perdue

had to use the hard end of the scrub brush, opposite the bristles, to scrape

chunks off of the floor while on his hands and knees, still wearing only his

boxers. Id. 14-15.

The cell also contained a soiled mattress that was "brown and

disgusting." Id. at 14. The sheet and blanket were also soiled, but the top 25%

of the blanket looked "halfway decent" so Mr. Perdue ripped it off and set it to

the side. Id. at 15. Because he did not have a towel or mop, he used the

blanket to push the liquid mix of feces and chemicals out of his cell and into

the range. Id.

While Mr. Perdue was cleaning on his hands and knees, the chemicals

flicked up into his face and got into his right eye on two occasions. Id. at 16.

His eye burned very badly, and he was covered in sweat with chemicals on his

hands, and didn't know what to do. Id. He begged the officers to get him out of

there and to put him in a different cell, but they said they were not allowed to.

Id. Mr. Perdue asked Officer Koenig, among others, to let him take a shower

and wash off. Id. Mr. Perdue was told that he would get a shower during his

range's next shower day, which would have been Saturday, and this all

occurred on a Thursday. Id. at 17.

C. Mr. Perdue's Injuries

Mr. Perdue had symptoms immediately after the chemicals splashed into

his right eye when he cleaned his cell on his hands and knees. Dkt. 56-10 at

45. Nonparty Dr. Lewton diagnosed Mr. Perdue with cataracts in his right eye,

stating that it was the result of an injury to his right eye. Id. Mr. Perdue sees

Dr. Lewton every six months and still experiences pressure in his right eye. His

eyesight in his right eye is completely blurred. Id. at 45-46.

Mr. Perdue experienced ongoing abdominal pains and vomiting while

housed in the feces-covered cell. Id. at 47-49. He also developed rashes on his

elbows and his knees. Id. at 49-50. Mr. Perdue stated that he could not help

but scratch these red patches because they were so itchy. Id. Mr. Perdue

suspects that the rashes were due to the chemicals and stated that they lasted

about a week. Id. at 50-51.

IV.

Discussion

A. Conditions of Confinement and Qualified Immunity

Mr. Perdue proceeds on conditions of confinement claims against Officers

Koenig and Salinas. Dkt. 9 at 6. Officers Koenig and Salinas argue on summary

judgment that Mr. Perdue cannot establish the subjective component of such a

claim, dkt. 50 at 11, and that in the alternative, they are entitled to qualified

immunity. Id. at 17.

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). Neither "negligence [n]or even gross negligence is

enough[.]" Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008).

"[Q]ualified immunity shields officials from civil liability so long as their

conduct 'does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.'" Mullenix v. Luna, 577 U.S.

7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). "To

overcome the defendant's invocation of qualified immunity, [a plaintiff] must

show both (1) that the facts make out a constitutional violation, and (2) that

the constitutional right was 'clearly established' at the time of the official's

alleged misconduct." Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713 (7th Cir.

2013).

Officers Koenig and Salinas do not dispute that being transferred to a cell

covered in human feces satisfies the objective element. Dkt. 50 at 9. But they

argue that they "did not have the requisite knowledge to be indifferent." Id. at

10. Officers Koenig and Salinas cite to Mr. Perdue's deposition testimony, dkt.

49-10 at 22-23, that Officer Koenig stated: "I know it's been dry for a while, so

it's safe for you to clean it. You can clean it yourself." Dkt. 50 at 10. Officers

Koenig and Salinas further argue that they "reasonably believed that any dried

feces posed no imminent threat or existential threat to the Plaintiff and they

thought it was safe for him to clean it himself." Id. at 11-12. But other than

Officer Koenig's statement that the feces had "been dry for a while," this

assertion is not supported by any citation to the record. See id.

The designated evidence is that Mr. Perdue begged the officers not to

place him in the cell and begged for biohazard to clean up the mess. Dkt. 49-10

at 9-12. Officers Salinas and Koenig were aware of the feces covered cell yet did

not call biohazard to clean up the dried feces or otherwise transfer Mr. Perdue

to another cell. Id. In fact, Mr. Perdue testified that Officer Salinas stepped into

the cell with him, turned the light on, and then told Officer Koenig that "[w]e

can't leave him in here." Id. at 10. The record also shows that Mr. Perdue

begged to shower after he scrubbed his cell on his hands and knees, and was

told he had to wait several days until his range had their set shower time. Id.

A reasonable jury could therefore find that Officers Salinas and Koenig

"were subjectively aware of these conditions and refused to take steps to

correct them, showing deliberate indifference." Thomas, 2 F.4th at 720.

The Court therefore addresses the second prong of the qualified

immunity analysis: whether that right was clearly established. Pearson, 555

U.S. at 232. This "clearly established" standard ensures "that officials can

'reasonably . . . anticipate when their conduct may give rise to liability for

damages.'" Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Anderson v.

Creighton, 483 U.S. 635, 646 (1987)). To be "clearly established," a

constitutional right "must have a sufficiently clear foundation in then-existing

precedent." District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). Given this

emphasis on notice, clearly established law cannot be framed at a "high level of

generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). "A rule is too general

if the unlawfulness of the officer's conduct 'does not follow immediately from

the conclusion that [the rule] was firmly established.'" Wesby, 583 U.S. at

64 (quoting Anderson, 483 U.S. at 641). Although "a case directly on point" is

not required, "precedent must have placed the . . . constitutional question

beyond debate." White v. Pauly, 580 U.S. 73, 79 (2017) (cleaned up). Put

slightly differently, a right is clearly established only if "every reasonable official

would have understood that what he is doing violates that right." Taylor v.

Barkes, 575 U.S. 822, 825 (2015).

"The Supreme Court's message is unmistakable: Frame the

constitutional right in terms granular enough to provide fair notice

because qualified immunity 'protects all but the plainly incompetent or those

who knowingly violate the law.'" Campbell v. Kallas, 936 F.3d 536, 546 (7th Cir.

2019) (quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018)). Qualified immunity

thus "balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield

officers from harassment, distraction, and liability when they perform their

duties reasonably." Pearson, 555 U.S. at 231.

After Officers Salinas and Koenig raised qualified immunity, dkt. 50 at

17-18, Mr. Perdue identified cases showing that he had a clearly established

right to be free from inhumane conditions caused by severe exposure to human

waste, dkt. 54 at 8 (citing Taylor v. Riojas, 592 U.S. 7, 9 (2020) (reversing grant

of qualified immunity in case involving inmate left in a cell "teeming with

human waste" for 6 days). Mr. Perdue also cited several Seventh Circuit cases

which would put Defendants on notice that allowing a prisoner to be held in a

cell severely contaminated with human feces violated the Constitution. E.g.

Isby v. Clark, 100 F.3d 502, 506 (7th Cir. 1996); Johnson v. Pelker, 891 F.2d

136, 139 (7th Cir. 1989).

Defendants are not entitled to summary judgment based on qualified

immunity, and those claims must be resolved at trial.

B. State Law Negligence

Mr. Perdue also brings a state law negligence claim against Officer

Salinas. Dkt. 9 at 6. To prevail on a common law negligence claim under

Indiana law, a plaintiff must prove: (1) the defendant owed the plaintiff a duty;

(2) the defendant breached that duty; and (3) the breach proximately caused an

injury to the plaintiff. Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011).

Officer Salinas argues that he is entitled to summary judgment because

he "did not act with negligence to the Plaintiff's alleged injuries." Dkt. 50 at 15.

But Officer Salinas does not include any briefing, factual analysis, or legal

precedent to support why he was not negligent. See dkt. 50 at 15-17. Any

argument for summary judgment on the negligence claim is therefore waived.

Schaefer v. Universal Scaffolding & Equip., LLC, 830 F.3d 599, 607 (7th Cir.

2016) ("Perfunctory and undeveloped arguments are waived, as are arguments

unsupported by legal authority.").

Officer Salinas also argues that he is entitled to qualified immunity on

the negligence claim against him. Dkt. 50 at 17-18. But a federal qualified

immunity defense does not extend to Mr. Perdue's Indiana-law negligence

claim brought under this Court's supplemental jurisdiction. See Johnson v.

Fankell, 520 U.S. 911, 914 (1997). Moreover, Officer Salinas's argument is that

the State does not consent to suit in federal court pursuant to the Eleventh

Amendment. Id. at 18; see also dkt. 58 at 2. Eleventh Amendment immunity,

however, is not the same as qualified immunity. Compare Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 98 (1984) ("the principle of sovereign

immunity is a constitutional limitation on the federal judicial power established

in Art. III") with Mullenix, 577 U.S. at 11 ("[Q]ualified immunity shields officials

from civil liability so long as their conduct 'does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.'"). Since Officer Salinas is sued in his personal capacity, an award of

damages could be executed only against the official's personal assets, and

Eleventh Amendment sovereign immunity does not apply. Lewis v. Clarke, 581

U.S. 155, 163 (2017) ("[S]overeign immunity does not erect a barrier against

suits to impose individual and personal liability.").

Officer Salinas is not entitled to summary judgment on the negligence

claim against him.

Vv.

Conclusion

The clerk is directed to change the name on the docket of defendant

"James Bowman" to "James Boldman."

Mr. Perdue's motion for leave to file a notice of statement of material

facts in dispute, dkt. [55], is GRANTED. Defendants' motion for summary

judgment is GRANTED in part and DENIED in part. Dkt. [49]. The claims

against Defendants Michael Pfleeger, James Boldman, Robert E. Carter, Jr.,

Dennis Reagle, Dennis Davis, Chance Bishop, and Christina Conyers are

abandoned and therefore dismissed with prejudice. The clerk is directed to

terminate these parties as defendants on the docket.

The following claims must be resolved by settlement or trial: (1) Eighth

Amendment conditions of confinement claims against Officer Koenig and

Officer Salinas; (2) a state law negligence claim against Officer Salinas.

The magistrate judge is asked to hold a status conference to discuss the

scheduling of a settlement conference and trial readiness.

SO ORDERED.

Date: 7/23/2026 : Pas +

James Patrick Hanlon

United States District Judge

Distribution: Southern District of Indiana

JEFFERY K. PERDUE

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