TERRE HAUTE, Ind. (WTWO/WAWV) — A lawsuit against Vigo County Sheriff John Plasse will be allowed to continue in a limited basis following a ruling by a U.S. District Court judge.

The lawsuit stems from the in-custody death of Frederick Whitlock on December 4, 2020, after he had contracted COVID-19 while being held in the old Vigo County Jail. Whitlock’s daughter Latasha Housley claims that Sheriff John Plasse, two correctional officers, and 50 unnamed “John Doe” members of jail staff violated the constitutional rights of Whitlock by failing to provide proper COVID-19 precautions or testing of inmates in the jail.

What happened to Frederick Whitlock

In a retelling of the timeline in the ruling, Judge James Sweeney II pointed out that Whitlock never formally requested medical attention after noticing symptoms of illness a month before his death. But Sweeney also pointed out many inmates had also failed to do so, citing a $15 fee that the jail charged inmates to submit a healthcare request. Sweeney said numerous inmates verbally requested to be seen, but staff told them they were fine and failed to take any action in response.

On December 4, 2020, Mr. Whitlock collapsed in his cell after receiving his breakfast tray. He was transported to the hospital and died a short time later. His cause of death was asphyxiation secondary to bilateral pulmonary emboli with COVID-19 as a contributing factor. Dkt. 19-6. Shortly after Mr. Whitlock’s death, the Indiana Department of Health ordered that all Jail inmates be tested for COVID-19, and over 100 inmates tested positive.

Judge James Sweeney

Ruling on defendants liability in an individual capacity

In Wednesday’s ruling, Judge Sweeney granted summary judgement in favor of the defendants John Plasse, Brad Suter, and Torrie Switzer in their individual capacity, citing qualified immunity.

“The issue is whether the defendants were on notice that their particular conduct— failing to provide masks, testing, adequate cleaning supplies, and adequate treatment of COVID-19 symptoms—violated Mr. Whitlock’s Eighth Amendment rights. The plaintiff has cited no case that suggests as much, and the Court can find none. Instead, many courts have granted qualified immunity to jail and prison administrators given the evolving nature of the virus and the related recommendations for keeping incarcerated individuals safe.”

“Qualified immunity is especially appropriate because the defendants are correctional professionals, not health professionals. The undisputed evidence is that the Sheriff relied on the Vigo County Health Department to provide the Jail with recommended COVID-19 protective measures.”

The judge also dismissed as defendants the un-named staff citing the Seventh Circuit

“The Seventh Circuit has long held that ‘it is pointless to include anonymous defendants in federal court; this type of placeholder does not open the door to relation back under Fed. R. Civ. P. 15, nor can it otherwise help the plaintiff.'”

Ruling on liability of Sheriff Plasse in an official capacity

When determining if Sheriff Plasse could continue to be a defendant in the lawsuit in his official capacity as Sheriff, the court found that a dispute of material facts meant no summary judgement could be found.

The judge pointed to the lack of a written policy in response to the threat of COVID-19 at the facility, stating a jury could find that the lack of a policy resulted in a haphazard response.

“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. There is no evidence that efforts were made to socially distance inmates or to procure tests before December 2020.3 There is 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. A jury could find that the few policies enacted were insufficient in light of the serious risks posed by COVID-19 and other reasonable measures that could have been taken.”

Timeline of the Vigo County Jail’s response to COVID-19 in relation to the death of Frederick Whitlock provided in the Judge’s ruling document

Citing a case against the Maricopa County Sheriff in Arizona in which qualified immunity was granted, Judge Sweeney pointed out that in that case, the sheriff had enacted numerous policies in the jail above and beyond what was present in Vigo County.

“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.”

After discussing the similarities and differences in the cases the judge concludes;

“Because there are material disputes of fact as to whether the Vigo County Sheriff’s Department COVID-19 policies caused Mr. Whitlock to suffer a constitutional injury, summary judgment must be denied as to the official capacity claim against Sheriff Plasse.”

Judge Sweeney then gave the plaintiff until September 15 to notify the court if they intend to proceed with their claim. The judge also requested that the Magistrate Judge set the matter for a status conference at their earliest convenience to discuss further developments needed for trial and if the case was amenable to a settlement.

Read the entire ruling below;