COVID-19 death lawsuit against Plasse as sheriff may proceed, judge rules

Aug. 16—A lawsuit filed by the estate of a Vigo County Jail inmate who died while infected with COVID-19 in 2020 may proceed, but only against John Plasse in his capacity as the county sheriff, a federal judge ruled Wednesday.

Dismissed as defendants were Plasse as an individual, correctional officers Brad Suter and Torrie Switzer as individuals, and 50 unnamed or "John Doe" jail employees.

Frederick Whitlock, 56, was an inmate at the now-former jail near Cherry and Third streets in downtown Terre Haute. He was sentenced in November 2020 to 22 years in prison after being convicted at trial of aggravated battery in a May 2019 stabbing. He was awaiting transport to the Indiana Department of Correction

On Dec. 4, 2020, Whitlock collapsed after receiving his breakfast tray and died a short time later. After his death, he was found to be positive for COVID-19.

An autopsy commissioned by his family listed the cause of death as asphyxiation secondary to bilateral pulmonary emboli, or a blood clot in the lungs. It listed COVID-19 as a contributory factor.

Whitlock's death stirred questions from the family and from the Reform Movement of Terre Haute about COVID safety protocols in the jail and whether Whitlock received appropriate care.

Shortly after Whitlock's death, the Indiana Department of Health ordered all Vigo County Jail inmates be tested for COVID-19, and over 100 inmates tested positive, court documents note.

Latasha Housley, Whitlock's daughter and a legal representative of his estate, sued. She alleged the sheriff and other defendants failed to provide constitutionally adequate medical care, causing Whitlock's death.

The defendants filed a motion for summary judgment seeking dismissal. U.S. District Judge James R. Sweeney II on Wednesday ruled on that motion.

The judge dismissed the claims against the unnamed jailers, writing, "...the Seventh Circuit (of the U.S. Court of Appeals) 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 ... (federal law), nor can it otherwise help the plaintiff.'"

The judge dismissed the claims against Suter, Switzer and Plasse as individuals, citing the principle of qualified immunity.

Qualified immunity protects governmental officials, including law enforcement officials, from individual liability unless the official has violated an established constitutional right.

The judge wrote "... 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.

"Courts have 'long recognized that correctional institutions typically engage in the division of labor between medical professionals and other security and administrative staff,' and therefore it was reasonable for the defendants to defer to the health department for guidance on handling COVID-19 within the jail."

Plasse remains a defendant in his official capacity as the sheriff of Vigo County, the judge ruled.

The court wrote, "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 set a Sept. 15 deadline for the plaintiff to notify the court whether she intends to proceed with a claim of gross negligence. He also asked a magistrate judge to set up a status conference.

The case is 2:22-cv-00020-JRS-MKK in U.S. District Court, Southern District of Indiana, Terre Haute division.

Contact Mark Fitton at 812-231-4333 or mark.fitton@tribstar.com.