Blackburn

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BRANDALE BLACKBURN,

#M54199

Plaintiff, Case No. 22-CV-01713-SPM

v.

PHILIP K. ROYSTER, et al.,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Pending before the Court is Defendants Chelsea Regelsperger and Paige

Salger’s Motion for Summary Judgement (Doc. 103) and Defendants Terry E. Brooks,

Zachary D. Fenton, Philip K. Royster, and Jerod Schanz’s Motion for Partial

Summary Judgment (Doc. 107). Having been fully informed of the issues presented,

Defendants Regelsperger and Salger’s Motion for Summary Judgement (Doc. 103) is

GRANTED and Defendants Brooks, Fenton, Royster, and Schanz’s Motion for Patial

Summary Judgment (Doc. 107) is GRANTED in part and DENIED in part.

PROCEDURAL BACKGROUND

Plaintiff Brandale Blackburn is an inmate currently incarcerated at Pontiac

Correctional Center in Illinois. (Doc. 35, p. 2). On July 7, 2023, Plaintiff filed his First

Amended Complaint for alleged violations of his constitutional rights that occurred

while Plaintiff was at Menard Correctional Center (“Menard”). (Doc. 35).

The Court screened Blackburn’s First Amended Complaint pursuant to 28

U.S.C. § 1915A and allowed him to proceed on the following counts: (1) equal

protection right violation claims under the Fourteenth Amendment against

Regelsperger and Salger (collectively the “Wexford Defendants”); (2) an excessive use

of force claim against Royster, Brooks, and Fenton (collectively the “ERT

Defendants”); (3) Illinois state law claims of assault and battery, intentional infliction

of emotional distress, and negligence against the ERT Defendants; (4) Eighth

amendment cruel and unusual punishment claims against the ERT Defendants; and

(5) a claim of negligent spoliation of evidence against Jerod Schanz. (Doc. 34, pp. 8,

10–11, 14).1 The Court granted Blackburn’s Motion to Appoint Counsel on December

3, 2024, and assigned Attorney Michael D. Haeberle, who entered his appearance on

behalf of Blackburn on December 5, 2024. (Docs. 84, 87, 88).

The Wexford Defendants filed a Motion for Summary Judgement on May 1,

2026. (Doc. 103). Blackburn did not file a response in opposition. The ERT Defendants

and Schanz filed a Motion for Partial Summary Judgement on May 11, 2026. (Doc.

107). Again, Blackburn did not file a response in opposition.

RELEVANT FACTUAL BACKGROUND

As Behavioral Health Technicians employed by Wexford Health Sources,

Regelsperger was facilitator and Salger was co-facilitator of the Behavioral

Management Unit group therapy sessions at Menard. (Doc. 104-2, pp. 1–2; Doc. 104-

3, pp. 1–2). Behavioral Health Technicians had two primary functions—to facilitate

educational group therapy sessions and to respond to requests for crisis intervention.

1 Blackburn originally filed the claim for spoilation of evidence against John Doe who was later

identified as Jerod Schnaz. The Court subsequently granted Blackburn’s Motion to Substitute Newly

Identified Defendant. (Docs. 71, 75).

(Doc. 104-2, pp. 1–2; Doc. 104-3, pp. 1–2). Behavioral Health Technicians are not

licensed clinicians and, therefore, must report back to a licensed clinician who can

prescribe or order treatments and therapies. (Doc. 104-2, pp. 1–2; Doc. 104-3, pp. 1–

2). Group therapy sessions typically include one or two facilitators and five to six

inmates. (Doc. 104-2, p. 2; Doc. 104-3, p. 2). For safety, a HIPAA trained correctional

officer is always present at these group sessions. (Doc. 104-2, p. 2; Doc. 104-3, p. 2).

On August 25, 2021, Blackburn attended a group therapy mental health

session at Menard, run by Regelsperger and Salger. (Doc. 104-1, pp. 16–17, 22).

During the group session, another inmate became hostile, eventually prompting the

Wexford Defendants to terminate the session. (Doc. 104-1, p. 19; Doc. 104-2, pp. 2–3;

Doc. 104-3, pp. 2–3). Security staff began to remove the inmates from the group

session room. (Doc. 104-2, p. 3; Doc. 104-3, p. 3). According to protocol, and for their

own security, the Wexford Defendants began to exit the room as inmates were

removed by security staff. (Doc. 104-2, p. 2; Doc. 104-3, p. 2).

Before the Wexford Defendants exited the group session room, Blackburn

informed the Wexford Defendants that he needed to speak to a crisis team member.

(Doc. 104-1, p. 18; Doc. 104-2, p. 3; Doc. 104-3, p. 3). Regelsperger attempted to

perform a crisis evaluation on Plaintiff, but Plaintiff told the Wexford Defendants

that he did not feel comfortable getting a crisis evaluation done in a group setting

because he wanted confidentiality. (Doc. 104-1, pp. 18–19, 71–72). At that time, the

other members of the mental health group were in a side room, but they could hear

everything. (Id. at 26).

Regelsperger asked Blackburn if he was refusing his crisis evaluation, to which

he responded that he was not refusing. (Id. at 22, 71–72). Regelsperger did not

perform a crisis evaluation on Blackburn, so he informed Salger that Blackburn

needed a crisis evaluation. (Id. at 23, 72). Salger said nothing in response. (Id. at 23).

Blackburn felt he was singled out and treated unfairly by the Wexford Defendants’

conduct. (Id. at 136). Later that day, at 11 a.m., Blackburn received a crisis evaluation

conducted by Rhiana Draper, a licensed clinical social worker. (Doc. 104-2, p. 4; Doc.

104-3, p. 4; Doc. 104-6).

The ERT Defendants retrieved Blackburn from the group session at

approximately 9:40 a.m. (Doc. 108-4, pp. 1–3, 5). At that time, Royster, Brooks, and

Fenton were acting as members of the Emergency Response Team (“ERT”) at Menard.

(Doc. 108-1, p. 12; Doc. 108-2, pp. 11, 14; Doc. 108-4, pp. 1–3, 5).

As ERT members, Royster, Brooks, and Fenton were escorting Blackburn to

his cell from the Mental Health Group. (Doc. 108-1, p. 12; Doc. 108-2, pp. 11, 14; Doc.

108-4, pp. 1–3, 5). Once they reached 5 Gallery flag, Blackburn stopped and refused

to return to his cell, ignoring multiple direct orders. (Doc. 108-3 p. 18; Docs. 108-4,

pp. 1–3, 5). The ERT Defendants claim Blackburn became combative and headbutted

Brooks in the helmet. (Doc. 108-3, p. 18; Doc. 108-4, pp. 1–3, 5). However, Blackburn

alleges that he only verbally questioned the ERT Defendants when they began to take

him to his cell. (Doc. 104-1, pp. 29–30)2. Blackburn expected to be taken to North II

infirmary, as is typical when an inmate requests a crisis team. (Id.). Blackburn

asserts that ERT Defendants then became aggressive and beat him. (Id.).

2 Defendants Regelsperger and Salger introduced Plaintiff’s Deposition in their Motion for Summary

Judgement (Docs. 104, 104-1). The Court will consider Plaintiff’s Deposition in addressing both

Motions for Summary Judgement.

The ERT Defendants allege that when Fenton stepped in to assist the

physically combative Blackburn, he was also headbutted in the helmet by Blackburn.

(Doc. 108-3, p. 18; Doc. 108-4. p. 1). Royster then launched three PepperBall

projectiles at Blackburn, targeting the lower major muscle groups. (Doc. 104-1, p. 86;

Doc. 108-3, p. 18; Doc. 108-4, pp. 1–3, 5). After deploying the PepperBall projectiles,

Fenton and Brooks were able to take Blackburn to the ground to gain control of the

situation. (Doc. 108-3, p. 18; Doc. 108-4, pp. 1–3, 5). The ERT Defendants contend

that in the struggle, Blackburn bit Royster on the left hand. (Doc. 108-3, p. 18; Doc.

108-4 pp. 1–3, 5).

After the incident, the ERT Defendants escorted Blackburn to the infirmary

where he was put in a holding area so he could speak with medical and mental health

professionals. (Doc. 108-1, pp. 31–32; Doc. 108-2, p. 26). Blackburn asserts that he

notified the ERT Defendants about his injuries whilst in the holding area. (Doc. 104-

1, p. 98). The ERT Defendants claim that they offered Blackburn the opportunity to

wash his eyes out at the eyewash station next to the medical holding cell, but

Blackburn refused. (Doc 108-1, pp. 31–32; Doc. 108-2, p. 26).

While in the infirmary, Blackburn was seen by a nurse. (Doc. 104-1, p. 98).

However, the nurse could not properly assess Blackburn as he was wearing a spit

mask, and his arms were handcuffed behind his back. (Id. at 99–100). The nurse did

not try to clean Blackburn’s face or eyes and did not take him to the nearby flushing

station. (Id. at 99, 101). Blackburn further asserts that the ERT Defendants never

took him to the eye wash station and never asked if he wanted to go to the eyewash

station despite Blackburn telling the officers he needed to flush his eyes. (Id. at 101–

02). Blackburn also contends that ERT Defendants heard him “loud and clear” when

he told them he wanted to flush his eyes. (Id. at 103).

Blackburn states that while he was in the infirmary holding cell, Fenton

directed racial slurs at him, and Royster sprayed Blackburn in the face with pepper

spray for “no apparent reason.” (Id. at 105). However, Royster claims he was not

carrying pepper spray on him that day. (108-1, p. 29). After this, Blackburn once

again told the ERT Defendants that he needed to flush his eyes. (104-1, p. 108). The

ERT Defendants did not take Blackburn to flush his eyes (Id. at 105). Instead, they

took Blackburn to a new cell where the sink and toilet were not working. (Id. at 105–

06, 108). After putting Blackburn in the cell, the ERT Defendants had no other

involvement with him that day. (Id. at 107–08). Around 2:00 p.m., Blackburn retained

access to water when the gallery officer resumed the hot water to his cell. (Id. at 109).

Blackburn’s claims against Schanz arise from the ensuing investigation of the

incident that occurred on August 25, 2021. During his investigation, Schanz

interviewed the ERT Defendants, Correctional Officer Evans, and Blackburn. (Doc.

108-4, pp. 5–37). Schanz also reviewed Blackburn’s medical records, mental health

disciplinary review, disciplinary reports, and the final summary report. (Id.). Schanz

interviewed Blackburn on September 11, 2021, during which Blackburn complained

of bruising. (Doc. 108-3, p. 38; Doc. 104-1, p. 111). However, Schanz says he saw no

bruising or injuries on Blackburn, and his medical records reported no injuries other

than where the PepperBalls hit him. (Doc. 108-3, p. 38; Doc. 108-4, pp. 24–26). Schanz

states Blackburn refused to sign the investigational interview report. (Doc. 108-4, pp.

22–23). Conversely, Blackburn says that Schanz “never let” him sign the report and

cannot recall if Schanz asked him to sign it. (Doc 104-1, pp. 113–14). Schanz

concluded the investigation and determined that the use of force was justified per

IDOC policy and that Royster “had to compel compliance with a lawful order to ensure

the safety and security of the facility and to protect any other person from physical

assault, injury or death.” (Doc 108-3, p. 18; Doc 108-4, 7).

Blackburn purports that his statement drafted by Schanz was an inaccurate

and falsified retelling of what Blackburn relayed to Schanz during the interview. (Doc

104-1, pp. 112–13). Also, Blackburn claims he asked Schanz to take pictures of his

injuries, but Schanz did not do so. (Id. at 112). Blackburn alleges extensive injuries

arising out of the incident, including a swollen face, a bleeding and twisted wrist, a

bleeding and injured ankle, bruising on the back, legs, and neck, and mental health

issues. (Id. at 119–21).

APPLICABLE LAW AND LEGAL STANDARDS

The Court shall grant summary judgement only “if the movant shows that

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

judgment as a matter of law.” Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012)

(quoting Fed. R. Civ. P. 56(a)); see Dale v. Poston, 548 F.3d 563, 568-69 (7th Cir. 2008).

A genuine issue of material fact exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). In determining whether a genuine issue of fact exists, the Court

“considers the entire evidentiary record and must view all of the evidence and draw

all reasonable inferences from that evidence in the light most favorable to the

nonmovant.” Miksis v. Evanston Twp. High Sch. Dist. # 202, 235 F.Supp.3d 960, 984

(N.D. Ill. 2017) (citing Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013)). Although a

non-movant receives the benefit of conflicting evidence and reasonable inferences, the

movant is still required to produce sufficient evidence to establish the essential

elements of his or her claims. Jackson v. Sheriff of Winnebago Cnty., Illinois, 74 F.4th

496, 500 (7th Cir. 2023). Further, the Court will not weigh credibility or make

credibility determinations, as this function is reserved for a jury. Anderson, 477 U.S.

at 255.

Once the moving party has set forth the basis for summary judgment, the burden

then shifts to the nonmoving party who must go beyond mere allegations and offer

specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.

56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Stated another way,

the nonmoving party must offer more than “[c]onclusory allegations, unsupported by

specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d

767, 773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

The nonmovant cannot simply rely on its pleadings. Rather, the nonmovant must

present admissible evidence that sufficiently shows the existence of each element of

its case on which it will bear the burden of proof at trial. Midwest Imps., Ltd. v. Coval,

71 F.3d 1311, 1317 (7th Cir. 1995) (citing Serfecz v. Jewel Food Stores, 67 F.3d 591,

596 (7th Cir. 1995); Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d

391, 394 (7th Cir. 1993); Celotex, 477 U.S. at 323–24)).

ANALYSIS

I. Count 3 – Fourteenth Amendment Violation against the Wexford

Defendants

The Wexford Defendants argue that they are entitled to summary judgement

on Blackburn’s equal protection rights and failure to intervene claims because

Blackburn has not, and cannot, produce evidence that the Wexford Defendants

violated Blackburn’s equal protection rights. (Doc. 103).

The Equal Protection Clause commands that no state shall “deny to any person

within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND. XIV, §1.

Here, Plaintiff brings a class-of-one equal protection claim. A class-of-one equal

protection claim requires a showing that the plaintiff was: (1) intentionally treated

differently from others similarly situated; and (2) there is no rational basis for the

difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Ind.

Land Tr. #3082 v. Hammond Redevelopment Comm’n, 107 F.4th 693, 698 (7th Cir.

2024).

In the prison context, officials may treat inmates differently if the unequal

treatment is rationally related to a legitimate penological interest. Flynn v. Thatcher,

819 F.3d 990, 991 (7th Cir. 2016); Yoder v. Prince, No. 23-2334, 2024 WL 3220407, at

*2 (7th Cir. June 28, 2024). Under the class-of-one equal protection theory, a plaintiff

must negate “any reasonably conceivable state of facts that could provide a rational

basis” for the difference in treatment. 145 Fisk, LLC v. Nicklas, 986 F.3d 759, 772

(7th Cir. 2021). Thus, if a court can identify a conceivable rational basis for the

defendant’s actions, that is enough to grant summary judgement. Chi. Studio Rental,

Inc. v. Ill. Dep’t of Com., 940 F.3d 971, 980 (7th Cir. 2019); Anna’s Café Place LLC v.

Vill. of Westchester, No. 25-2019, 2026 WL 1452564, at *3 (7th Cir. May 22, 2026).

The conceivable rational basis for the differential treatment need not be the actual

basis for defendant’s actions. Ind. Land Tr. #3082 at 699 (quoting Chi. Studio Rental,

Inc. at 980).

Here, there is a rational basis for the Wexford Defendants’ conduct. At the time

Blackburn requested a crisis evaluation, the Wexford Defendants were not able to

perform crisis evaluation with full confidentiality. The positioning of other inmates

and security personnel in the room was determined by protocol and reasonable safety

concerns. Regelsperger did not refuse to provide a crisis evaluation, and Blackburn

received a confidential crisis evaluation once the other inmates were secure.

The penological interest of security and safety forms a conceivable rational

basis for any differential treatment of Blackburn. Thus, Blackburn’s Equal Protection

claims fail, and Blackburn’s failure to intervene claim fails because it is contingent

on the Regelsperger’s conduct being unconstitutional. Therefore, Defendants Chelsea

Regelsperger and Paige Salger’s (Doc. 103) Motion for Summary Judgement is

GRANTED.

II. Count 12 – Eighth Amendment Violation against the ERT Defendants

The ERT Defendants argue that they are entitled to summary judgement on

Blackburn’s cruel and unusual punishment claims because: (1) the ERT Defendants

are entitled to immunity for Blackburn’s tort claim under the Illinois State Lawsuit

Immunity Act; and (2) the ERT Defendants were not deliberately indifferent to an

excessive risk to Blackburn’s health or safety (Doc. 107, p. 2).

A. State Lawsuit Immunity Act

The ERT Defendants argue that the Illinois State Lawsuit Immunity Act bars

Blackburn’s Eighth Amendment claim against them. (Doc. 107, p. 2; Doc. 108, p. 8).

The State Lawsuit Immunity Act provides that “the State of Illinois shall not be made

a defendant or party in any court,” except in the Illinois Court of Claims. T.S. v. Cty.

of Cook, 67 F.4th 884, 890–91 (7th Cir. 2023); 745 ILL. COMP. STAT. 5/1. State

sovereign immunity may extend to claims against state employees, even when they

are sued in their individual capacities, when the action is “nominally one against the

servants or agents of the State” but “the real claim is against the State of Illinois

itself and . . . the State of Illinois is the party vitally interested.” Murphy v. Smith,

844 F.3d 653, 656 (7th Cir. 2016).

However, the officer suit exception provides that state sovereign immunity

does not apply to state-law claims against a state employee who has violated

statutory or constitutional law. Murphy, 844 F.3d at 655, 659 (citing Leetaru v. Board

of Trustees of University of Illinois, 32 N.E.3d 583 (Ill. 2015)). “This exception is

premised on the principle that while legal official acts of state officers are regarded

as acts of the State itself, illegal acts performed by the officers are not.” Murphy, 844

F.3d at 659 (citation omitted); see Frakes v. Warren, No. 3:23-CV-2963-MAB, 2026

2026 WL 1328219, at *2–3 (S.D. Ill. May 13, 2026) (denying motion to dismiss when

the plaintiff alleged that the defendants’ conduct underlying the negligence claim also

violated the Eighth Amendment). Furthermore, courts have found that a

constitutional claim is not barred by the State Lawsuit Immunity Act when a plaintiff

names defendants in their individual capacity rather than their official capacity. See

T.S. v. Cty. of Cook, 67 F.4th 884, 894 (7th Cir. 2023) (holding the officer suit

exception applies in an official capacity suit only when a plaintiff seeks to enjoin state

officials from ongoing statutory or constitutional violations); Haywood v. Wexford

Health Sources, No. 3:22-CV-731-NJR, 2026 WL 1172850 (S.D. Ill. Apr. 30, 2026)

(granting dismissal for claims against defendants in their official capacity, but

denying dismissal for identical Eighth Amendment deliberate indifference claims

against defendants in their individual capacity); Walsh v. Brown, No. 25-cv-194-SMY,

2026 WL 1965077 (S.D. Ill. July 7, 2026) (holding sovereign immunity did not warrant

dismissal of the claims against the defendant for monetary damages as the plaintiff

properly named the defendant in both his individual capacity for damages, and in his

official capacity for prospective injunctive relief).

Here, Blackburn does not specify whether he is suing the ERT Defendants in

their official or individual capacities, but in the original complaint, Blackburn sought

monetary damages. (Doc. 1, p. 23). Therefore, Blackburn’s Eighth Amendment claims

cannot be brought against the ERT Defendants in the official capacities. As such, the

Court will analyze the Eighth Amendment claims against the ERT Defendants in

their individual capacities.

The ERT Defendants wrongly characterize Count 12 as a tort claim, rather

than a constitutional violation claim. (Doc. 108, p. 10). Similarly, the ERT

Defendants’ reliance on T.S. v. Cty. of Cook is misplaced. (Id. at 9). In T.S., the

Seventh Circuit held that a plaintiff’s claim against a defendant in his personal

capacity should have been analyzed —and dismissed— under the Healy factors. T.S.

67 F.4th at 892, 894 (citing Healy v. Vaupel, N.E.2d 1240, 1247 (1990)). However, the

relevant claim in T.S. was a fiduciary duty violation rather than a constitutional

violation, and the Seventh Circuit specifically did not overturn the officer suit

exception. Id. at 889, 894; see Murphy, 844 F.3d at 660 (holding that sovereign

immunity did not bar plaintiff’s claim because he alleged that the defendants acted

in violation of statutory or constitutional law); Thompson v. Wexford Health Sources

Inc., No. 20 CV 1191, 2024 WL 4826684 (N.D. Ill. Nov. 19, 2024) (holding that

sovereign immunity did not shield defendant from liability when his conduct was

unconstitutional).

Here, Blackburn claims his Eighth Amendment rights were violated.

Therefore, the ERT Defendants are not afforded sovereign immunity under the State

Lawsuit Immunity Act.

B. Eighth Amendment Cruel and Unusual Punishment

The Eight Amendment, incorporated to apply to the states pursuant to the

Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments”

on individuals convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Johnson

v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006); see U.S. CONST. AMEND. VIII; U.S.

CONST. AMEND. XIV, § 1. “After incarceration, only the ‘unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual punishment forbidden by the

Eighth Amendment.’” Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing Ingraham v.

Wright, 430 U.S. 651, 670 (1977)); Hudson v. McMillian, 503 U.S. 1, 5 (1992).

Unnecessary and wanton infliction of pain can stem from physical force or inhumane

conditions that do not provide for a detainee’s basic human needs. See Rhodes v.

Chapman, 452 U.S. 337, 347 (1981); Whitaker v. Dempsey, 144 F.4th 908, 922 (7th

Cir. 2025) (citing Whitley 475 U.S. at 319). Inmates have the right to “humane

conditions of confinement,” which include adequate food, clothing, shelter, and

medical care, and prison officials must “take reasonable measures to guarantee the

safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson

v. Palmer, 468 U.S. 517, 526–27 (1984)); Daugherty v. Harrington, 906 F.3d 606, 611

(7th Cir. 2018). Among other things, these principles prohibit prison officials from

“intentionally denying or delaying access to medical care or intentionally interfering

with the treatment once prescribed.” Zentmyer v. Kendall Cty., 220 F.3d 805, 810 (7th

Cir. 2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)).

An Eighth Amendment claim survives summary judgment only if both an

objective and a subjective element are satisfied. See LaBrec v. Walker, 948 F.3d 836,

841 (7th Cir. 2020): Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017); King v. Kramer,

680 F.3d 1013, 1018 (7th Cir. 2012). “[F]irst, an objective showing that the conditions

are sufficiently serious—i.e., that they deny the inmate the minimal civilized measure

of life’s necessities, creating an excessive risk to the inmate’s health and safety—and

second, a subjective showing of a defendant’s culpable state of mind.” Isby, 856 F.3d

at 521 (7th Cir. 2017) (internal citations and quotation marks omitted); Farmer, 511

U.S. at 834.

First, the objective element is satisfied when the evidence supports the

conclusion that the plaintiff had an “objectively serious medical need.” McGee v.

Adams, 721 F.3d 474, 480 (7th Cir. 2013); King 680 F.3d at 1018 (quoting Wynn v.

Southward, 251 F.3d 588, 593 (7th Cir. 2001)). An objectively serious medical need is

one that “has been diagnosed by a physician as mandating treatment or one that is

so obvious that even a lay person would perceive the need for a doctor’s attention.”

McGee, 721 F.3d at 480 (citing King, 680 F.3d at 1018). It is not necessary for such a

medical condition to “be life-threatening to be serious; rather, it could be a condition

that would result in further significant injury or unnecessary and wanton infliction

of pain if not treated.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

Generally, the use of “mace, tear gas or other chemical agent of the like nature

when reasonably necessary . . . to subdue recalcitrant prisoners” does not constitute

a sufficiently serious injury under the Eighth Amendment. Soto v. Dickey, 744 F.2d

1260, 1270–71 (7th Cir. 1984). However, “it is a violation of the Eighth Amendment

for prison officials to use mace or other chemical agents in quantities greater than

necessary or for the sole purpose of punishment or the infliction of pain.” Id. at 1270.

Exposure to a chemical agents can “result in a serious medical condition that

implicates the Eighth Amendment”. McCloud v. Vanschoyck, No. 21-cv-00429-JPH-

MKK, 2024 WL 229740, at *7 (S.D. Ind. Jan. 19, 2024) (denying defendants summary

judgement motion when plaintiff presented evidence that he was sprayed with OC

spray, left in his cell for hours, reported to prison officials that he was in distress, and

was not allowed to shower for days); see also Kervin v. Barnes, 144 Fed.App’x 551,

552 (7th Cir. 2005) (finding that detaining an inmate for eight hours after using

chemical agents without allowing him to wash his face amounts to the wanton

infliction of pain and suffering, but that holding the inmate until the disturbance has

clearly ended does not).

Here, there is a genuine issue of material fact as to whether the ERT

Defendants utilized the PepperBall launcher or the pepper spray in a quantity

greater than necessary or for the sole purpose of punishment or infliction of pain.

(Doc. 104-1, pp. 29–30, 86, 105; Doc. 108-1, pp. 31–32; Doc 108-3, p. 18; Doc. 108-4,

pp. 1–3, 5). Based on Blackburn’s allegations, which must be taken as true, a

reasonable juror could find that Blackburn’s injury was sufficiently serious to

constitute an Eighth Amendment violation.

The appropriate inquiry when an inmate alleges that a prison official failed to

attend to a serious medical need is whether the officials acted with “deliberate

indifference.” Hudson, 503 U.S. at 5; see Estelle, 429 U.S. at 104. Deliberate

indifference describes a state of mind more blameworthy than negligence, with the

standard comparable to criminal recklessness. See Farmer, 511 U.S. at 835; King, 680

F.3d at 1018. The prison officials must have known of, and disregarded, a risk of harm

to the inmate. Farmer, 511 U.S. at 834. Thus, to satisfy the subjective element,

Blackburn must demonstrate a genuine issue of fact on the question of whether the

ERT Defendants were aware of his serious medical need and were deliberately

indifferent to it. See Wynn, 251 F.3d at 593.

Here, Blackburn demonstrates a genuine issue of fact as to whether the prison

officials were aware of his serious medical needs and were deliberately indifferent to

them. Blackburn states that he informed the ERT Defendants of his need to flush his

eyes multiple times, and that they heard him “loud and clear” when he did so. (Doc.

104-1, pp. 98, 103, 108). Moreover, the ERT Defendants’ assertion that Blackburn

was given the opportunity to flush his eyes is directly contested by Blackburn’s sworn

testimony that he was never allowed, or offered the chance, to flush his eyes. (Doc.

104-1, pp.101–02; Doc 108-1, pp. 31–32; Doc. 108-2, p. 26). Further, according to

Blackburn’s version of events, the ERT Defendants pepper sprayed him even after he

informed them that he was in pain from the PepperBall launcher. (Doc. 104-1, p. 105).

Blackburn’s testimony introduces genuine issues of material facts from which a jury

could reasonably find that the ERT Defendants were deliberately indifferent to

Blackburn’s serious medical needs.

Therefore, Defendants Terry E. Brooks, Zachary D. Fenton, Philip K. Royster,

and Jerod Schanz’s (Doc. 107) Motion for Partial Summary Judgment on Count 12 is

DENIED.

III. Count 20 – Negligent Spoliation of Evidence Against Schanz

Schanz argues that he is entitled to summary judgment on Blackburn’s claim

against him because: (1) the claim is barred by the immunity provided in the State

Lawsuit Immunity Act; and (2) he did not owe Blackburn any duty to preserve

evidence. (Doc. 107, p. 2).

Under Illinois law, spoliation of evidence is treated as a negligence action.

Duran v. Town of Cicero, 653 F.3d 632, 644 (7th Cir. 2011) (quoting Boyd v. Travelers

Ins. Co., 652 N.E.2d 267, 270–71 (Ill. 1995)). “Accordingly, a plaintiff claiming

spoliation of evidence must prove that: (1) the defendant owed the plaintiff a duty to

preserve the evidence; (2) the defendant breached that duty by losing or destroying

the evidence; (3) the loss or destruction of the evidence was the proximate cause of

the plaintiff’s inability to prove an underlying lawsuit; and (4) as a result, the plaintiff

suffered actual damages.” Moore v. Ziegler, No. 16-CV-1239-NJR-GCS, 2019 WL

1353947, at *7 (S.D. Ill. Mar. 26, 2019) (quoting Martin v. Keeley & Sons, Inc., 979

N.E.2d 22, 27, (Ill. 2012)). The general rule in Illinois is that there is no duty to

preserve evidence. Martin 979 N.E.2d at 28.

As previously noted, courts have found that constitutional claims are not

barred by the State Lawsuit Immunity Act when a plaintiff names a defendant in

their individual capacity rather than in their official capacity. See T.S. v. Cty. of Cook,

67 F.4th 884, 894 (7th Cir. 2023); Haywood v. Wexford Health Sources, No. 3:22-CV-

731-NJR, 2026 WL 1172850 (S.D. Ill. Apr. 30, 2026); Walsh v. Brown, No. 25-cv-194-

SMY, 2026 WL 1965077 (S.D. Ill. July 7, 2026). Therefore, as with the ERT

Defendants, the Court will analyze Blackburn’s claim against Schanz in his

individual capacity.

When the claim in question is not a constitutional or statutory violation, courts

must apply the factors set forth in Healy to determine whether the claim will be

barred by the State Lawsuit Immunity Act. See T.S., 67 F.4th at 894–95. Blackburn

claims negligent spoilation of evidence, which is not a constitutional or statutory

violation. As such, Blackburn’s claim against Schanz must be assessed under Healy

to determine whether the claim is really against the State of Illinois itself, and if so,

the claim must be dismissed without prejudice and litigated in the Illinois Court of

Claims. See Jinkins v. Lee, 807 N.E.2d 411, 417 (Ill. 2004). An action brought against

a state employee is considered one against the state when:

[T]here are (1) no allegations that an agent or employee of the State

acted beyond the scope of his authority through wrongful acts; (2) the

duty alleged to have been breached was not owed to the public generally

independent of the fact of State employment; and (3) where the

complained-of actions involve matters ordinarily within that employee’s

normal and official functions of the State.

T.S., 67 F.4th at 892 (citing Healy, 549 N.E.2d at 1247).

First, whether “an agent or employee of the State acted beyond the scope of his

authority, depends on whether the employee intended to perform some function

within the scope of his or her authority when committing the legal wrong.” T.S.,67

F.4th at 892 (internal citations and quotations omitted). Blackburn has not made any

allegations that Schanz acted outside the scope of his authority through wrongful

acts. In fact, it is Schanz’s authority, provided to him by his State employment, to

investigate and assess grievance claims at Menard. (Doc. 108-3, p. 12).

Second, the Court must analyze whether the alleged breach of duty—spoilation

of evidence—was owed to the public generally, independent of Schanz’s state

employment. Healy, 549 N.E.2d at 1257. Illinois law imposes no general duty to

preserve evidence. Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599,

609 (7th Cir. 2016); Martinez v. Abbott Labs., 356 F. Supp. 2d 898, 903. Rather, such

a duty can only be created by agreement, contract, statute, or other special

circumstances. Schaefer 839 F.3d at 909; Martinez F. Supp. 2d at 903. A state

employee’s duty may arise independently of state employment only when it exists

regardless of employment by the state. T.S., 67 F.4th at 893. Here, the source of any

duty Schanz has to Blackburn arises solely out of Schanz’s state employment because

Illinois does not impose a general duty to preserve evidence.

Finally, it must be determined whether the alleged breach involved matters

ordinarily within the normal and official functions of Schanz’s state employment. Id.

at 892. Here, Blackburn’s complaint involves matters ordinarily within Schanz’s

normal and official functions of the State. As previously noted, it is within Schanz’s

authority, provided to him by his state employment, to investigate and assess

grievance claims at Menard. (Doc. 108-3, p. 12).

For the foregoing reasons, the Court finds that Count 20 is actually a claim

against the State of Illinois and is barred by sovereign immunity. Therefore,

Defendants Terry E. Brooks, Zachary D. Fenton, Philip K. Royster, and Jerod

Schanz’s (Doc. 107) Motion for Partial Summary Judgment on Count 20 is

GRANTED.

CONCLUSION

For the reasons set forth above, Defendants Chelsea Regelsperger and Paige

Salger’s (Doc. 103) Motion for Summary Judgement is GRANTED and Defendants

Terry E. Brooks, Zachary D. Fenton, Philip K. Royster, and Jerod Schanz’s (Doc. 107)

Motion for Partial Summary Judgment is GRANTED in part and DENIED in

part. Count 3 and 20 of Plaintiff Brandale Blackburn’s First Amended Complaint are

DISMISSED with prejudice. Defendants Chelsea Regelsperger, Paige Salger, and

Jerod Schnaz are DISMISSED from this case.

IT IS SO ORDERED.

DATED: August 24, 2026

STEPHEN P. MCGLYNN

United States District Judge