Judge: Federal lawsuit against Vigo sheriff in COVID-19 case may continue

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Feb. 9—A Vigo County Jail inmate's lawsuit against Sheriff John Plasse, which alleges the inmate contracted COVID-19 because of poor practices or indifference at the jail, can continue, a federal judge has ruled.

Nathan Epple, a Vigo County murder defendant since October 2019, was a cellmate with Frederick Whitlock at the now-former jail near Cherry and Third streets in downtown Terre Haute.

In December 2020, Whitlock — who was ill — collapsed, and jail officers asked Epple to help move Whitlock, who vomited and urinated during the process. Whitlock was then transported to a hospital where he died. After his death, he tested positive for COVID-19.

Subsequent testing of Vigo County Jail inmates led to the discovery that more than 100 were positive for COVID-19, including Epple.

Based on those allegations, Epple sued Plasse contending his Fourteenth Amendment rights (due process) were violated.

Plasse then asked for a summary judgment in his favor, both as an individual and in his official capacity as sheriff.

U.S. Judge Jane Magnus-Stinson ruled Feb. 3, granting Plasse's motion regarding his status as an individual but denying it — or allowing the lawsuit to continue — under Plasse's status as sheriff of Vigo County.

The judge noted she was obligated in this instance to look at the evidence "in the light most favorable" to the party not making the motion — Epple — and draw any reasonable inferences in that party's favor.

Epple says that after his cellmate vomited and urinated while being moved from his cell, he and another inmate were given cleaning supplies and told to clean the cell and the area outside the cell.

However, he says, they were denied bleach that they requested, and he was denied a change of his clothes, which had cellmate Whitlock's bodily fluids on them.

Epple "testified he is suing the sheriff because he believes jail staff intentionally placed him in danger of contracting COVID-19 by compelling him to assist Mr. Whitlock without any training or protective gear such as a mask and gloves, and because the jail was not taking COVID-19 seriously when it failed to provide any COVID testing or masks before Mr. Whitlock's death."

Regarding Plasse's motion for summary judgment as an individual, Judge Magnus-Stinson wrote, "There is no evidence that Sheriff Plasse had any personal involvement in the events that took place in November and December 2020.

"He was not present when Mr. Whitlock became ill, and there is no indication he was involved with COVID-19 testing, jail masking requirements, or failing to provide Mr. Epple with gloves or clean clothes. Accordingly, summary judgment is granted as to Sheriff Plasse in his individual capacity."

However, the question of whether Plasse has liability as sheriff continues.

"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, the judge wrote.

"... 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," Magnus-Stinson wrote.

"For example, there was no obvious coordination between the jail and QCC (a medical services provider) on educating inmates about the virus, procuring tests, or waiving co-payments if an inmate had a concern related to COVID-19."

A jail commander'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," she wrote.

"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 efforts were 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."

Judge Magnus-Stinson asked a federal magistrate judge to hold a settlement conference.

Epple, 29, of Clay City, faces murder and other charges in the beating death of Jeffrey S. Cottrell on Sept. 27, 2019, at Cottrell's home on 14th Street in Terre Haute. Authorities contend the beating that resulted in death occurred during a robbery.

That criminal case is set for a jury trial March 7 in Vigo Superior Court 5 before Judge Matthew Sheehan.

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