02/06/2023
THIS IS HUGE!!!!!
A federal judge has in part denied Sheriff Plasse's motion for summary judgement to dismiss a lawsuit against him by a prisoner who was forced to lift a man that died of Covid in the jail without any PPE and contracted Covid himself. The judge finds Sheriff Plasse liable in his official capacity as Sheriff for negligence in his mishandling of the Covid pandemic inside the jail. The lawsuit has now moved into settlement negotiations. Federal Judge Magnus-Stinson of the Southern District of Indiana writes:
"First, a jury could find that Sheriff Plasse was deliberately indifferent by failing to create a comprehensive written policy to combat the spread of COVID-19 in the jail. In Glisson v. Indiana Department of Corrections, 849 F.3d 372, 382 (7th Cir. 2017), the Seventh Circuit concluded that a medical services provider could be liable for failing to establish a protocol for the coordinated care of chronic illnesses because the need for such a protocol was "obvious," so a jury could find that the lack of protocol caused the plaintiff's death. While the Court recognizes that the evolving nature of the COVID-19 virus and guidance provided by the CDC would warrant a flexible approach, a jury could find that the lack of a written policy resulted in a haphazard response in the jail. For example, there was no obvious coordination between the jail and QCC on educating inmates about the virus, procuring tests, or waiving copayments if an inmate had a concern related to COVID-19. Mr. Funk's testimony that staff was informed of guideline changes sometimes at staff meetings and sometimes by email does not inspire confidence that all Vigo County Jail staff members were on the same page at any given time.
To the extent that the Sheriff's Department had a policy to combat COVID-19, a jury could conclude that the few steps taken were so ineffectual as to evince deliberate indifference. In an overcrowded facility, no effort was made to socially distance inmates. There was no evidence that inmates were provided educational materials about COVID-19. Sheriff Plasse does not explain why jail staff members were not required to wear masks until August 2020, or why inmates were not allowed to wear masks before December 2020. There was no evidence that staff members were screened for symptoms upon entry into the jail. A jury could find that the few policies enacted— increased cleaning, quarantining incoming inmates, and bleaching common areas—were insufficient in light of the serious risks posed by COVID-19 and other reasonable measures that could have been taken. See Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (upholding grant of preliminary injunction where officials at immigration detention center failed to provide detainees masks or compel guards to wear masks, failed to enact social distancing measures, and failed to provide sufficient soap or hand sanitizer).
Many courts have granted summary judgment in favor of municipalities for their responses to the COVID-19 pandemic, but the jail officials in those cases enacted far more comprehensive policies than those presented here. See e.g. Harb v. Penzone, Case No. CV-21-01032-PHX-MTL, 2022 WL 17177675, *12 (D. Ariz. Nov. 23, 2022) (Maricopa County Sheriff not deliberately indifferent where in March 2020 jail enacted policies that restricted visitors, reduced inmate populations, distributed masks and cleaning supplies to inmates, required staff and inmates to wear masks, instituted screening protocols for everyone entering the jail, etc.); Brogan v. BRRJA, Case No. 7:21-cv-00180, 2022 WL 875040, *5 (W.D. Va. Mar. 23, 2022) (similar provisions including masks, temperature checks, and testing); Carpenter v. Thurston County, Case No. 3:21-cv-05859- BJR-JRC, 2022 WL 3239754, *5 (W.D. Wash. June 13, 2022) (similar provisions including screenings, quarantines, face mask directives, social distancing, and enhanced cleaning). In this case, however, there are material disputes of fact as to whether the Sheriff was deliberately indifferent to the serious risks of harm given the minimal safety measures he undertook.
Further, Mr. Epple has produced evidence that multiple inmates were injured by the Sheriff's policies. Helbachs Café LLC, 46 F.4th at 530. Mr. Whitlock tragically died, and over 100 inmates tested positive for COVID-19 shortly after his death.
Because there are material disputes of fact as to whether the Vigo County Sheriff's Department COVID-19 policies caused Mr. Epple to suffer a constitutional injury, summary judgment must be denied as to the official capacity claim against him."
