1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

JOHN SHANNON, 

Plaintiff, 

vs. 

PORTER COUNTY SHERIFF’S DEPT., a 

political subdivision of the 

State of Indiana; DAVID LAIN, 

Individually and in his capacity 

as Sheriff of the Porter County 

Sheriff’s Dept.; JOHN WIDUP, 

Individually and as Warden of 

the Porter County Jail, 

Defendants. 

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NO. 2:14–CV-188 

OPINION AND ORDER

 This matter is before the Court on the Defendants’ Motion for 

Summary Judgment, filed on September 6, 2016, by Defendants Porter 

County Sheriff’s Department, David E. Lain and John Widup in their 

individual and official capacities (DE #23). For the reasons set 

forth below, Defendants’ Motion for Summary Judgment (DE #23) is 

GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to: 

(1) the 42 U.S.C. § 1983 claims against David E. Lain and the 

Porter County Sheriff’s Department; (2) the civil conspiracy and 

state constitutional claims; and (3) the intentional infliction of 

emotional distress claim against the Porter County Sheriff’s 

Department. These claims are DISMISSED, and defendant David E. 

Lain is DISMISSED from this case. The motion is DENIED as to: (1) 
2 

the 42 U.S.C. § 1983 claim against John Widup in his individual 

capacity; (2) the issue of qualified immunity for John Widup; and 

(3) the negligence claim against the Porter County Sheriff’s 

Department. 

BACKGROUND 

 On May 17, 2012, Plaintiff John Shannon (“Shannon”) was 

attacked by an inmate while he was a pretrial detainee in the 

Porter County Jail (“Jail”). Shannon filed this action against 

Defendants Porter County Sheriff’s Department (“Sheriff’s 

Department”), David Lain (“Lain”) in his individual capacity and 

in his capacity as Sheriff of the Sheriff’s Department, and John 

Widup (“Widup”) in his individual capacity and in his capacity as 

Warden of the Jail (together, “Defendants”), alleging violations 

of 42 U.S.C. § 1983 and the Indiana Constitution, and state tort 

claims of intentional infliction of emotional distress and 

negligence. (DE #1-1.) The case was removed to federal court, 

and after the close of discovery, Defendants filed the instant 

motion for summary judgment on September 6, 2016. (DE #23.) 

Shannon filed his response to Defendants’ motion on November 9, 

2016. (DE #29.) Defendants filed their reply to the motion on 

November 22, 2016. (DE #32.) 
3 

DISCUSSION 

Standard 

Summary judgment must be granted when “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

dispute of material fact exists when “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, 106 S. Ct. 

2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties 

makes summary judgment inappropriate; “[o]nly disputes over facts 

that might affect the outcome of the suit under the governing law 

will properly preclude the entry of summary judgment.” Id. In 

determining whether summary judgment is appropriate, the court 

must construe all facts in the light most favorable to the 

nonmoving party and draw all reasonable inferences in that party’s 

favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). 

“However, our favor toward the nonmoving party does not extend to 

drawing inferences that are supported by only speculation or 

conjecture.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 

2013) (citation omitted). 

While the movant bears the initial burden of production to 

inform the district court why a trial is not necessary, these 

requirements “are not onerous” where the nonmoving party “bears 

the ultimate burden of persuasion on a particular issue.” 
4 

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). A party 

may move for summary judgment based on either “affirmative evidence 

that negates an essential element of the nonmoving party’s claim” 

or by “asserting that the nonmoving party’s evidence [is] 

insufficient to establish an essential element of the nonmoving 

party’s claim.” Id. at 1169 (citation and internal quotations 

omitted). A party opposing a properly supported summary judgment 

motion may not rely on allegations or denials in his own pleading, 

but rather, must “marshal and present the court with the evidence 

[he] contends will prove [his] case.” Goodman v. Nat'l Sec. 

Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving 

party fails to establish the existence of an essential element on 

which he bears the burden of proof at trial, summary judgment is 

proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). 

Material Facts 

 On April 17, 2012, Shannon was taken into custody at the Jail 

on a failure to appear warrant on multiple misdemeanors. A day or 

two thereafter, Shannon met with Porter County Police Department 

Detective Reynolds and a Porter County prosecutor to discuss an 

incident Shannon had witnessed involving a man named Mark Hurst 

(“Hurst”). During that meeting, Shannon agreed to testify at 

Hurst’s criminal trial. Shannon requested no deal in return for 

his testimony, but asked to be protected while being held at the 

Jail. They told Shannon that he would receive protective custody 
5 

and be kept separate from Hurst, who was also being held at the 

Jail. According to Shannon, an unidentified jail employee stated 

that he was in contact with Warden Widup and advised Shannon that 

he would be placed in protective custody. Shannon believed that 

protective custody meant that he would not be housed with the 

general population of inmates. 

The Jail’s standard operating procedure on inmate 

classification states that jail personnel “shall flag inmates who 

. . . have a special need.” (DE #29-11 at 3.) “Some inmates may 

have conditions or situations that call for them to have increased 

supervision, segregation, or special living conditions. These 

special needs include . . . [p]rotective custody, for reasons such 

as . . . [t]estifying as a witness.” (Id. at 4.) The Jail’s 

standard operating procedure on segregation housing states that 

jail personnel “shall segregate an inmate if the inmate . . . 

[n]eeds protective custody.” (DE #29-10 at 1.) Widup and other 

jail officers testified that it is well understood within the jail 

community that inmates who testify against other inmates are at a 

unique or greater risk of harm from other inmates, and recognized 

the special need for protective custody for inmates who testify as 

witnesses. (See DE #29-2 at 19 (“unique risk”); DE #29-6 at 4 

(“greater risk”); DE #29-5 at 3-4 (acknowledging that a testifying 

inmate’s life and health are in jeopardy, and that he faces a risk 
6 

from the general population as well as from the inmate against 

whom he testifies).) 

The Jail had three areas in which inmates were segregated 

from the general population: (1) sex offender segregation, 

including child molesters, who were segregated for their own 

protection; (2) medical segregation, for inmates needing medical 

care; and (3) disciplinary segregation, for inmates who had 

violated Jail rules. The Jail did not have “protective custody” 

segregation for testifying inmates because the Jail was “not set 

up” for it. (DE #29-2 at 11.) The Jail’s practice was to keep a 

testifying inmate separated from the inmate against whom he 

testified by placing a “keep separate” designation in its data 

entry system. A “keep separate” designation was the “most basic 

form” of protective custody at the Jail. (DE #29-3 at 12.) Widup 

recalled that three inmates had been relocated to other county 

jails because they were testifying against other inmates who were 

housed in the Jail. 

On April 19, 2012, Detective Reynolds called the Jail’s 

classification officer David Cavanaugh (“Cavanaugh”) and requested 

that a keep separate order be entered for Shannon and Hurst. 

Cavanaugh entered the keep separate order, and Shannon and Hurst 

were kept separate while Shannon was in custody. Lain, Widup and 

Assistant Warden Ron Gaydos (“Gaydos”) testified that they did not 

receive any notice from the prosecutor’s office that Shannon needed 
7 

special housing arrangements, and were not aware of anyone 

requesting special protection for Shannon. 

On April 20, 2012, Shannon met with Cavanaugh to determine 

Shannon’s housing assignment. Cavanaugh completed a jail 

classification form in the process of determining Shannon’s 

housing assignment. While the form did not indicate that Shannon 

was testifying against Hurst, it noted that Shannon was to be kept 

separate from Hurst. Shannon was then housed in general 

population. 

Shannon was deposed prior to testifying at Hurst’s criminal 

trial. Sometime between Shannon’s deposition and trial testimony, 

Shannon communicated with Widup while in the Jail’s booking area. 

Their accounts of this communication differ considerably. Shannon 

testified that he “told [Widup] my concern” while in the Jail’s 

booking area, and Widup “said he’s aware of the situation and would 

make sure that I am moved today. . . . [T]hen he called Lieutenant 

Young over. . . . [Young was] told by the warden [Widup] to make 

sure that I am moved, and which [sic] I did not get moved.” (DE 

#29-7 at 15.) In contrast, Widup testified that Shannon merely 

“yelled at me about something” while in the booking area. (DE 

#29-2 at 11.) 

On April 25, 2012, Shannon testified at Hurst’s criminal 

trial. Shannon told Detective Reynolds, the prosecutor, and the 

officer who transported him to the courthouse that he was still 
8 

being housed in general population. The officer told Shannon that 

he would handle it. Shannon also spoke to jail Captain Ronald 

Taylor (“Taylor”) about not being in protective custody. Taylor 

told him that protective custody was for child molesters, and that 

Shannon would be moved that day. Shannon was never placed in 

protective custody. 

After Hurst’s trial, Shannon was in line for food with other 

inmates when a jail officer congratulated him on testifying against 

Hurst. Thereafter, Shannon was assaulted by some inmates, which 

resulted in red marks on his face. Shannon summoned an officer 

using the emergency button in his cell, and told him that another 

officer had disclosed to inmates that Shannon was a snitch, that 

he feared for his safety, and that he was supposed to be in 

protective custody. An officer’s incident report dated May 2, 

2012, states that an officer received inmate request forms about 

removing Shannon from general population. According to the 

incident report, the officer discussed the requests with Shannon, 

who said that he had been threatened by an unidentified inmate, 

that he did not fear for his safety, and that “the reason alot 

[sic] of people do not like him is because he is a witness against 

another inmate.” (DE #29-15 at 2.) The officer initially left 

Shannon in his cell, but transferred Shannon to disciplinary 

segregation later that day because of the threats written in the 

inmate request forms. (Id.) Shannon was housed in disciplinary 
9 

segregation until May 6, 2012, when he was transferred to general 

population. (DE #29-3 at 5.) 

When Shannon returned to general population, an unknown 

inmate punched him and called him a snitch. Shannon does not 

recall any injury from this assault. Shannon spoke with an officer 

about this assault, and was transferred to disciplinary 

segregation to be reclassified on May 7, 2012. (DE #29-3 at 5.) 

Shannon was transferred back to general population on or about May 

12, 2012. (Id. at 5-6.) 

On May 17, 2012, Shannon was sitting at a table eating dinner 

in a common area when inmate Sergio Perez (“Perez”) struck him 

repeatedly in the head with what Shannon believes was batteries 

wrapped in a sock. Shannon did not fight back. It is undisputed 

that Perez attacked Shannon because he had testified against Hurst, 

and that Shannon did not know Perez before the attack. Perez’s 

attack lasted less than a minute, after which Shannon returned to 

his cell. Other inmates followed Shannon to his cell, and 

threatened him not to say anything about the attack. After the 

inmates left, Shannon pushed the emergency button in his cell, but 

no officer responded. He then telephoned his mother and wife. 

Within ten minutes, officers removed Shannon from his cell, telling 

him that they learned of the attack from his mother and wife. 

Shannon was transported to the hospital for treatment of his 

injuries, which included a fractured nose and eye socket. When 
10 

Shannon returned to the Jail, he was housed in medical isolation. 

While in medical isolation, Shannon was not seen by a nurse or 

provided with a shower or an ice pack. Shannon pushed the 

emergency button several times to request an ice pack. Shannon 

maintains that officers “Tased” him, hit him, and placed him in a 

“suicide chair” for 12-13 hours, causing him to urinate and 

defecate on himself. (DE #29-7 at 44.) Thereafter, Shannon was 

returned to medical isolation until he was released from custody. 

Neither Shannon nor Defendants knew Perez was planning to 

attack Shannon. After learning of Perez’s attack and Shannon’s 

injuries, Widup asked Captain Taylor to investigate the incident. 

Widup maintains that he learned that Shannon had testified against 

another inmate through Taylor’s investigation, and that no one had 

contacted him about any arrangement for protective custody for 

Shannon. In the past, the prosecutor or other agency had contacted 

Lain or Widup to request protective custody for inmates or 

detainees at the Jail. Widup testified that because Shannon was 

testifying against another inmate, he would have qualified for 

protective custody automatically, and that if Widup had been aware 

that Shannon was testifying against another inmate, he would have 

been relocated. Widup further testified that if Shannon had been 

in protective custody, he would not have been injured. 
11 

Section 1983 Claims against Lain and Widup in Their Individual 

Capacities 

Count II of the Complaint asserts claims pursuant to 42 U.S.C. 

§ 1983 against all Defendants, including Lain and Widup in their 

individual and official capacities. Defendants argue that the 

Section 1983 claims against Lain and Widup in their individual 

capacities must be dismissed. Section 1983 provides a federal 

cause of action any time an individual who, under color of state 

law, deprives another of any right, privilege, or immunity as 

provided by the Constitution and laws of the United States.1 42 

U.S.C. § 1983. Individual capacity suits “seek to impose personal 

liability upon a government official for actions he takes under 

color of state law.” Kentucky v. Graham, 473 U.S. 159, 165, 105 

S. Ct. 3099, 87 L.Ed.2d 114 (1985) (citation omitted). 

“[I]ndividual liability under § 1983 requires ‘personal 

involvement in the alleged constitutional deprivation.’” Minix v. 

Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (quoting Palmer v. 

Marion County, 327 F.3d 588, 594 (7th Cir. 2003)). “Although 

direct participation is not necessary, there must at least be a 

showing that the [prison official] acquiesced in some demonstrable 

																																																								

1 Shannon was a pretrial detainee at the time of his alleged 

constitutional deprivation, and thus, his Section 1983 claims are 

analyzed under the Due Process clause of the Fourteenth Amendment 

rather than the Eighth Amendment. See Velez v. Johnson, 395 F.3d 

732, 735 (7th Cir. 2005). The Seventh Circuit has found “little 

practical difference between the two standards.” Id. (citation 

omitted).
12 

way in the alleged constitutional violation.” Palmer, 327 F.3d at 

594 (citations omitted). 

“[P]rison officials have a duty to protect prisoners from 

violence at the hands of other prisoners.” Farmer v. Brennan, 511 

U.S. 825, 833, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994) (citations 

and ellipses omitted). “It is not, however, every injury suffered 

by one prisoner at the hands of another that translates into 

constitutional liability for prison officials responsible for the 

victim’s safety.” Id. at 834; see Dale v. Poston, 548 F.3d 563, 

569 (7th Cir. 2008) (noting that a constitutional violation does 

not occur “every time an inmate gets attacked by another inmate”). 

The alleged deprivation must be “sufficiently serious,” and the 

prison official must have had “deliberate indifference” to inmate 

health or safety. Farmer, 511 U.S. at 834 (citations omitted). 

There is no dispute that the threat of which Shannon complains 

(being attacked by an inmate) is sufficiently serious to support 

a constitutional claim. The parties dispute whether Lain and Widup 

were deliberately indifferent to Shannon’s safety. Proving 

deliberate indifference requires more than a showing of negligence 

or even gross negligence; the official must have acted with the 

equivalent of criminal recklessness. See Guzman v. Sheahan, 495 

F.3d 852, 857 (7th Cir. 2007) (proving deliberate indifference to 

an inmate’s safety requires conduct “equivalent [to] criminal 

recklessness”); Borello v. Allison, 446 F.3d 742, 749 (7th Cir. 
13 

2006) (“[M]ere negligence or even gross negligence does not 

constitute deliberate indifference.”). In order to prove 

deliberate indifference, a plaintiff must show that the official 

had “actual, and not merely constructive, knowledge of the risk” 

of serious injury to plaintiff; “specifically, [the official] must 

both be aware of facts from which the inference could be drawn 

that a substantial risk of serious harm exists, and he must also 

draw that inference.” Gevas v. McLaughlin, 798 F.3d 475, 480 (7th 

Cir. 2015) (citation and internal quotation marks omitted). 

Whether a prison official has the requisite knowledge of a 

substantial risk is a question of fact. Farmer, 511 U.S. at 842. 

Defendants argue that the Section 1983 claims against Lain 

and Widup in their individual capacities should be dismissed 

because neither Lain nor Widup were personally involved in the 

alleged constitutional deprivation. Defendants maintain that 

prior to Perez’s attack, Lain and Widup were unaware of any issues 

between Shannon and Perez, or that Perez posed a threat to Shannon. 

However, a “prison official cannot escape liability by showing 

that he did not know that a plaintiff was especially likely to be 

assaulted by the specific prisoner who eventually committed the 

assault.” Dale, 548 F.3d at 569 (citation and internal quotation 

marks omitted). Thus, Lain’s and Widup’s lack of awareness that 

Perez posed a threat to Shannon is insufficient to avoid liability. 
14 

Defendants insist that Lain and Widup had no knowledge of any 

threat to Shannon’s safety, and only learned that Shannon had 

testified against another inmate after he was attacked by Perez. 

Shannon responds that Lain and Widup were personally involved 

because his mother “spoke directly with Sheriff Lain and Warden 

Widup about the Shannon situation.” (DE #29 at 18.) In support, 

Shannon cites his own interrogatory answer, which was not based 

upon his personal knowledge. “[A] court may consider only 

admissible evidence in assessing a motion for summary judgment.” 

Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (citations 

omitted). “[A] party cannot use his own interrogatory answer, 

which is almost certainly hearsay when offered by that party 

himself to prove the truth of its contents, to support or oppose 

summary judgment.” Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 

731 n.2 (7th Cir. 2011). Shannon offers no other evidence of 

Lain’s personal involvement. Because Shannon does not proffer any 

admissible evidence raising a genuine issue of material fact as to 

whether Lain was personally involved in the alleged constitutional 

deprivation, the Section 1983 claim against Lain in his individual 

capacity must be dismissed. See Palmer, 327 F.3d at 594 

(dismissing § 1983 claims against sheriff in his individual 

capacity where plaintiff failed to make any showing that sheriff 

was aware of the risk faced by plaintiff). 
15 

Shannon maintains that Widup was personally involved in the 

alleged constitutional deprivation because he told Widup that he 

needed protective custody before he was attacked by Perez. Shannon 

testified in his deposition that he spoke to Widup about his 

concern in the Jail’s booking area before he testified at Hurst’s 

criminal trial. According to Shannon, Widup “said he’s aware of 

the situation and would make sure that I am moved today,” and told 

Lieutenant Young “to make sure” that Shannon was moved. (DE #29-

7 at 15.) Defendants contend that Shannon’s representation of his 

communication with Widup is an exaggeration of the facts. Widup’s 

recollection is that Shannon once “yelled at me about something” 

in the booking area. (DE #29-2 at 11.) Defendants focus on 

Shannon’s testimony that this communication was “in passing” to 

argue that this communication is insufficient evidence of Widup’s 

personal involvement (DE #29-7 at 15), and insist that Widup did 

not know that Shannon testified against another inmate until after 

Perez’s attack. However, the Court cannot discount Shannon’s 

testimony merely because the communication took place in passing. 

See Gevas, 798 F.3d at 482 (reversing judgment as a matter of law 

where prisoner’s “quite brief” interaction with acting warden of 

operations in the prison kitchen was sufficient to communicate the 

essential nature of the threat to the prisoner and to support the 

inference that the warden had actual knowledge of the threat). 
16 

To determine whether an official had actual knowledge of the 

threat to an inmate’s safety, courts consider the information the 

inmate conveyed to the official. Conveying to officials “only a 

generalized, vague, or stale concern about one’s safety typically 

will not support an inference that a prison official had actual 

knowledge that the prisoner was in danger.” Id. at 480-81 

(citations omitted). Instead, “a complaint that identifies a 

specific, credible, and imminent risk of serious harm and 

identifies the prospective assailant typically will support an 

inference that the official to whom the complaint was communicated 

had actual knowledge of the risk.” Id. at 481 (citation omitted). 

Shannon does not specify what information he relayed to Widup about 

his concern, but testified that Widup said that he was aware of 

Shannon’s situation, promised to move him, and ordered Lieutenant 

Young to make sure Shannon was moved. Widup testified that inmates 

who testify against other inmates are at a unique risk of harm 

from other inmates, and that as a testifying witness, Shannon would 

have qualified for protective custody automatically. The 

factfinder may believe that Shannon communicated his concern to 

Widup and Widup instructed an officer to make sure that Shannon 

was moved. If so, the factfinder reasonably could infer that Widup 

had notice of facts from which he could infer that Shannon faced 

a serious risk of substantial harm, and that Widup actually drew 

this inference, and was thus subjectively aware of the danger 
17 

Shannon faced. See Hatry v. County of Suffolk, 755 F. Supp. 2d 

422, 438 (E.D.N.Y. 2010) (denying summary judgment where a jury 

could find that the officer was aware of a substantial risk to 

inmate’s safety given evidence that he knew that the inmate was a 

cooperating witness, and knew the risks facing informants 

generally). Considering the evidence in the light most favorable 

to Shannon, a genuine issue of fact exists regarding whether Widup 

had actual knowledge of the threat to Shannon’s safety. 

Defendants also contend that Shannon has presented no 

evidence of Widup’s deliberate indifference to Shannon’s safety. 

“Once prison officials know about a serious risk of harm, they 

have an obligation ‘to take reasonable measures to abate it.’” 

Dale, 548 F.3d at 569 (citing Borello, 446 F.3d at 747). “[I]f 

prison officials are aware of a serious threat and ‘do nothing, 

that is deliberate indifference.’” Gidarisingh v. Pollard, 571 F. 

App’x 467, 471 (7th Cir. 2014) (quoting Billman v. Ind. Dep't of 

Corr., 56 F.3d 785, 788 (7th Cir. 1995)). “Prison officials who 

had actual awareness of a substantial risk to the health or safety 

of an inmate incur no liability if they responded reasonably to 

the risk, even if the harm ultimately was not averted, because in 

that case it cannot be said that they were deliberately 

indifferent.” Guzman, 495 F.3d at 857 (citation and internal 

quotation marks omitted). 
18 

Shannon argues that Defendants knew that he was in danger, 

but did nothing about it. He points to his communications with 

the unidentified jail officers who were present when he spoke with 

the county prosecutor, as well as officers who transported him to 

and from the courthouse and served him the subpoena for his trial 

testimony. But “the fact that an inmate sought and was denied 

protective custody is not dispositive of the fact that prison 

officials were therefore deliberately indifferent to his safety.” 

Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997). Moreover, 

there is no evidence that Widup knew about any of these 

communications before Perez attacked Shannon. Nor does Shannon 

proffer evidence indicating that, before Perez’s attack, Windup 

knew that a jail officer had disclosed to other inmates that 

Shannon had testified against Hurst, or that other inmates had 

assaulted Shannon for being a snitch. “[U]nder § 1983, a plaintiff 

may not rely on the doctrine of respondeat superior to hold 

supervisory officials liable for the misconduct of their 

subordinates.” Doyle v. Camelot Care Ctrs., 305 F.3d 603, 614 

(7th Cir. 2002) (citation omitted). Thus, Widup cannot be held 

liable for the misconduct of other jail officers. 

Shannon’s only admissible evidence relating to Widup is his 

testimony regarding their communication in the Jail’s booking 

area. As noted above, Widup’s recollection of this communication 

differs considerably. Defendants contend that Shannon did not 
19 

present his complaints directly to Widup, and that Widup was never 

told that Shannon required any type of special accommodation. The 

Court must consider the evidence in the light most favorable to 

Shannon as the nonmoving party. Thus, the Court must assume that 

the communication took place according to Shannon’s testimony, 

i.e., that Shannon told Widup his concerns, and that while Widup 

told Shannon that he would be moved out of general population that 

day, Shannon was not moved.2 See Gidarisingh, 571 F. App'x at 471 

(“[B]ecause the record suggests that [defendant] did nothing, a 

reasonable jury could conclude that he deliberately disregarded a 

serious risk to [plaintiff’s] safety”). Because genuine issues of 

material fact exist as to whether Widup acted with deliberate 

indifference to Shannon’s safety, the Court denies Defendants’ 

motion for summary judgment on the Section 1983 claim against Widup 

in his individual capacity. 

																																																								

2 The Court notes that while Shannon argues that Widup did nothing 

to protect him, he testified that Widup instructed Lieutenant Young 

to make sure he was moved. None of the parties address Widup’s 

alleged instruction. If the factfinder finds Shannon’s testimony 

to be credible, it may find that Widup’s instruction to Young was 

a reasonable response to the threat to Shannon’s safety. See

Gidarisingh, 571 F. App’x at 471 (“Had [defendant] taken some 

reasonable action in response to the threat, even if it did not 

ultimately prevent an attack, he might avoid liability.”). 
20 

Qualified Immunity 

Defendants assert that Lain and Widup are entitled to 

qualified immunity from liability for Shannon’s Section 1983 

claims. “Qualified immunity protects public servants from 

liability for reasonable mistakes made while performing their 

public duties.” Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 

2013) (citation omitted). “Whether a government official is 

entitled to qualified immunity is a legal question for resolution 

by the court, not a jury.” Purtell v. Mason, 527 F.3d 615, 621 

(7th Cir. 2008) (citations omitted). In determining whether an 

official is entitled to qualified immunity, a court asks two 

questions: “(1) whether the facts, taken in the light most 

favorable to the plaintiff, make out a violation of a 

constitutional right, and (2) whether that constitutional right 

was clearly established at the time of the alleged violation.” 

Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015) (citation 

omitted). “Although the privilege of qualified immunity is a 

defense, the plaintiff bears the burden of defeating it.” Betker 

v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012) (citation omitted). 

Defendants maintain that Lain and Widup are entitled to 

qualified immunity because they did not violate Shannon’s 

constitutional rights. According to Defendants, Shannon has 

presented no evidence that Lain or Widup were aware of a safety 

threat to Shannon until after Perez’s attack, and thus, they could 
21 

not have been deliberately indifferent to the risk of harm to 

Shannon. As shown above, this is true for Lain, and therefore he 

is entitled to qualified immunity. As for Widup, the Court has 

found that Shannon raises genuine issues of material fact regarding 

Widup’s actual knowledge of the threat to Shannon’s safety and 

deliberate indifference to his safety. 

Defendants assert that Widup acted reasonably under the 

circumstances because he relied upon the Jail’s classification 

process. They point to evidence that classification officer 

Cavanaugh heeded Detective Reynolds’ request that a “keep 

separate” order be entered for Shannon and Hurst, and that the 

order was followed. However, Widup testified that because Shannon 

was testifying against another inmate, he would have qualified for 

protective custody automatically, and that if Widup had been aware 

that Shannon was testifying against another inmate, he would have 

been relocated. Widup’s testimony raises a question as to whether 

it was reasonable to rely on the classification process in this 

case. It is possible that further development will show a set of 

facts under which qualified immunity might apply to Widup, but for 

now the Court cannot determine as a matter of law that qualified 

immunity applies to the Section 1983 claim against him. See

Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (“When 

the qualified immunity inquiry cannot be disentangled from 

disputed facts, the issue cannot be resolved without a trial.”). 
22 

Defendants also argue that Shannon has not demonstrated that 

the constitutional right was clearly established. “A plaintiff 

can show that a right is ‘clearly established’ by statute or 

constitution in at least two ways: (1) he can point to a clearly 

analogous case establishing the right to be free from the conduct 

at issue; or (2) he can show that the conduct was so egregious 

that no reasonable person could have believed that it would not 

violate established rights.” Beaman v. Freesmeyer, 776 F.3d 500, 

508–09 (7th Cir. 2015) (citation and internal quotation marks 

omitted). A prison official “cannot be said to have violated a 

clearly established right unless the right’s contours were 

sufficiently definite that any reasonable official in [his] shoes 

would have understood that he was violating it, meaning that 

existing precedent . . . placed the statutory or constitutional 

question beyond debate.” Kingsley v. Hendrickson, 801 F.3d 828, 

832 (7th Cir. 2015) (citation omitted). “[T]he inquiry into 

whether a right is clearly established ‘must be undertaken in light 

of the specific context of the case, not as a broad general 

proposition.’” Borello, 446 F.3d at 750 (quoting Brosseau v. 

Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L.Ed.2d 583 (2004)); 

see Kingsley, 801 F.3d at 832 (courts “must define the right in 

question with a sufficient degree of particularity”). 

Shannon asserts that the Constitution imposes on officials a 

duty to protect inmates from other inmates, and protects inmates 
23 

from the deliberate indifference of jail officials toward their 

safety. He cites Velez v. Johnson, 395 F.3d 732 (7th Cir. 2005), 

in which the Seventh Circuit states, “it is plainly the right [of 

an inmate] to be free from deliberate indifference to rape and 

assault. There can be no debate that this right was clearly 

established at the time.” Id. at 736 (holding that an officer’s 

failure to adequately respond to a pretrial detainee’s emergency 

call button during an assault by his cellmate violated the 

detainee’s constitutional rights); see Haley v. Gross, 86 F.3d 

630, 643 (7th Cir. 1996) (upholding a jury finding of deliberate 

indifference where an inmate told the officer that his cellmate 

made him fear for his safety and the officer “said he would ‘check 

into [moving the inmate],’ but nothing happened”). Shannon’s right 

to be free from deliberate indifference to assault was clearly 

established at the time he was attacked by Perez. Therefore, the 

Court denies summary judgment on Widup’s qualified immunity 

defense. 

Section 1983 Claim against the Sheriff’s Department 

Defendants also assert that the Section 1983 claim against 

the Sheriff’s Department must be dismissed because Shannon has no 

evidence of any procedure, policy or practice that allegedly caused 

his deprivation.3 A municipality may only be held liable for 

																																																								

3 Shannon’s claims against Lain and Widup in their capacities as 

Sheriff and Warden, respectively, will be treated as claims against 
24 

constitutional violations caused by the municipality through its 

own policy, practice, or custom. Monell v. Dep't of Soc. Servs. 

of the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. 

Ed. 2d 611 (1978). To recover under Monell, a plaintiff must 

establish that (1) he suffered a deprivation of a federal right 

(2) as a result of an express municipal policy, a widespread 

custom, or a deliberate act of a decision-maker with final 

policymaking authority for the municipality that (3) was the 

proximate cause of his injury. King v. Kramer, 763 F.3d 635, 649 

(7th Cir. 2014).4 “The existence of a policy or custom can be 

established in a number of ways: the plaintiff may point to an 

express municipal policy responsible for the alleged 

constitutional injury, or demonstrate that there is a practice 

that is so widespread that it rises to the level of a custom that 

can fairly be attributed to the municipality.” Id. 

																																																								

the Sheriff’s Department because “[a]n official capacity suit is 

tantamount to a claim against the government entity itself.” 

Guzman, 495 F.3d at 859 (citations omitted); see McLaughlin v. 

Freeman, No. 2:08-CV-58-PRC, 2013 WL 5407041, at *8 (N.D. Ind. 

Sept. 26, 2013) (holding that claims against Lake County Jail 

deputy warden in his official capacity were claims against the 

Lake County Sheriff's Department). 

4 Shannon states in passing that he “must demonstrate that Porter 

County through its final policy maker [sic] Chief Lain and Warden 

Widup made a deliberate choice among various alternatives,” but 

offers no evidentiary support for this argument. (DE #29 at 22.) 

The Court will not consider this perfunctory and undeveloped 

argument. See United States v. Hassebrock, 663 F.3d 906, 914 (7th 

Cir. 2011) (“[P]erfunctory and undeveloped arguments . . . are 

waived.”). 
25 

The Jail’s standard operating procedures state that jail 

personnel “shall segregate an inmate if the inmate . . . [n]eeds 

protective custody,” and that “[s]ome inmates may have conditions 

or situations that call for them to have increased supervision, 

segregation, or special living conditions,” including

“[p]rotective custody” for those “testifying as a witness.” (DE 

#29-10 at 1; DE #29-11 at 3-4.) Shannon claims that these written 

policies “assured” that he would be protected if he testified 

against another inmate. (DE #29 at 22.) However, “the 

Constitution does not require prison and jail authorities to ensure 

the safety of their detainees.” Palmer, 327 F.3d at 597 (citation 

omitted). 

Shannon maintains that notwithstanding the written policies, 

the Jail had a widespread practice of only protecting child 

molesters and sexual predators, thereby ensuring that he would 

have no protection against an attack by other inmates for 

testifying against an inmate. To impose Monell liability based on 

an unlawful practice, a plaintiff “must introduce evidence 

demonstrating that the unlawful practice was so pervasive that 

acquiescence on the part of policymakers was apparent and amounted 

to a policy decision.” Dixon v. Cty. of Cook, 819 F.3d 343, 348 

(7th Cir. 2016) (citation omitted). “[T]here is no clear consensus 

as to how frequently such conduct must occur to impose Monell

liability, except that it must be more than one instance, or even 
26 

three.” Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303 

(7th Cir. 2009) (citations and internal quotations omitted); see

Dixon, 819 F.3d at 348 (Monell liability “requires more than a 

showing of one or two missteps”); Palmer, 327 F.3d at 596 (“[P]roof 

of isolated acts of misconduct will not suffice; a series of 

violations must be presented to lay the premise of deliberate 

indifference.”). Aside from his own experience, Shannon does not 

proffer any evidence regarding inmates who testified against other 

inmates. Because Shannon offers no evidence of a widespread 

practice of failing to protect testifying inmates from attack, the 

Court grants Defendants’ motion for summary judgment on the Section 

1983 claim against the Sheriff’s Department. 

Civil Conspiracy and State Constitutional Claims in Count II 

In addition to Section 1983 claims, Count II of the Complaint 

asserts that “Defendants conspired with each other, and with other 

employees of the Department, to deprive Shannon of his 

constitutionally-protected rights.” (DE #1, ¶37.) Defendants 

argue that to the extent that Shannon attempts to assert a civil 

conspiracy claim, there is no evidence to support the existence of 

a conspiracy between Lain, Widup and other jail administrators. 

Shannon does not respond to this argument, and therefore waives 

his conspiracy claim. See Palmer, 327 F.3d at 597–98 (holding 

that a party abandoned his claim where he failed to delineate the 

claim in opposition to a motion for summary judgment); Laborers' 
27 

Int'l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir.

1999) (stating that arguments not presented in response to a 

summary judgment motion are waived). 

Defendants also argue that, to the extent Count II asserts a 

claim based on Article 1, Section 16 of the Indiana Constitution 

(see DE #1-1, ¶38), no private right of action exists. See Smith 

v. Ind. Dep't of Corr., 871 N.E.2d 975, 985 (Ind. Ct. App. 2007) 

(“[N]o Indiana court has explicitly recognized a private right of 

action for monetary damages under the Indiana Constitution.”). 

Shannon responds that he is not seeking damages for violations of 

the Indiana Constitution. Because Shannon does not oppose 

Defendants’ motion for summary judgment as to his civil conspiracy 

and state constitutional claims, the motion on these claims is 

granted. 

Intentional Infliction of Emotional Distress Claim 

Count I of the Complaint asserts a claim for intentional 

infliction of emotional distress against the Sheriff’s Department.5 

To establish a claim of intentional infliction of emotional 

distress under Indiana law, a plaintiff must prove that the 

defendant: “(1) engages in extreme and outrageous conduct (2) which 

																																																								

5 In his response brief, Shannon acknowledges that he does not seek 

damages against Lain or Widup in their individual capacities for 

state tort claims. See Ind. Code § 34–13–3–5(b) (“A lawsuit 

alleging that an employee acted within the scope of the employee's 

employment bars an action by the claimant against the employee 

personally.”).
28 

intentionally or recklessly (3) causes (4) severe emotional 

distress to another.” Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. 

Ct. App. 2011) (citation omitted). The requirements to prove this 

tort are rigorous and it is found only when the conduct “exceeds 

all bounds typically tolerated by a decent society and causes 

mental distress of a very serious kind. In the appropriate case, 

the question can be decided as a matter of law.” Id. 

Defendants argue that Shannon has not offered any evidence of 

mental injury. See Jimenez v. CRST Specialized Transportation 

Mgmt., Inc., 213 F. Supp. 3d 1058, 1066 (N.D. Ind. 2016) (granting 

summary judgment motion where plaintiff presented no evidence that 

the conduct caused severe emotional distress); Tracy v. Fin. Ins. 

Mgmt. Corp., 458 F. Supp. 2d 734, 747 (S.D. Ind. 2006) (granting 

summary judgment motion where plaintiff “did not suffer the 

requisite serious mental distress contemplated by this theory of 

liability”). Shannon’s one-paragraph response cites to no facts 

whatsoever regarding his alleged mental injury; rather, it focuses 

solely on whether Defendants’ actions in denying him protective 

custody and strapping him to a “suicide chair” for 12-13 hours 

were extreme and outrageous. (DE #29 at 26.) “Summary judgment 

is not a dress rehearsal or practice run; it is the put up or shut 

up moment in a lawsuit, when a party must show what evidence it 

has that would convince a trier of fact to accept its version of 

the events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 
29 

859 (7th Cir. 2005) (citations omitted). Because Shannon has 

produced no evidence that he suffered severe emotional distress, 

the Court grants Defendants’ motion to dismiss Shannon’s 

intentional infliction of emotional distress claim. 

Negligence Claim 

 Count I of the Complaint also alleges a negligence claim 

against the Sheriff’s Department. Under Indiana law, “[a] 

plaintiff seeking damages for negligence must establish (1) a duty 

owed to the plaintiff by the defendant, (2) a breach of the duty, 

and (3) an injury proximately caused by the breach of duty.” 

Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011). “Whether a 

particular act or omission is a breach of duty is generally a 

question of fact for the jury.” N. Ind. Pub. Serv. Co. v. Sharp,

790 N.E.2d 462, 466 (Ind. 2003) (citation omitted). Nevertheless, 

summary judgment is appropriate on the issue of breach of duty 

“where the facts are undisputed and only a single inference can be 

drawn from those facts.” Id. (citation omitted). 

When a party is in the custodial care of another, “the 

custodian has the duty to exercise reasonable care to preserve the 

life, health, and safety of the person in custody.” Sauders v. 

County of Steuben, 693 N.E.2d 16, 18 (Ind. 1998); see Trout v. 

Buie, 653 N.E.2d 1002, 1008 (Ind. Ct. App. 1995) (noting that 

Indiana Code 36-2-13-5(a)(7) sets forth the duty of the Sheriff 

“to take care of the county jail and the prisoners there”). “The 
30 

appropriate precautions will vary according to the facts and 

circumstances presented in each case.” Sauders, 693 N.E.2d at 18. 

The duty is to “take reasonable steps under the circumstances” to 

protect an inmate from harm. Id. Defendants argue that the 

Sheriff’s Department did not breach the duty to provide reasonable 

care. They point to the “keep separate” order for Shannon and 

Hurst, as well as evidence that when Shannon advised jail officers 

that inmates were acting out against him, he was removed from the 

threat by being re-located within the Jail. Defendants insist 

that these were reasonable steps to prevent harm to Shannon. They 

maintain that because the attack by Perez was unforeseeable, 

Shannon’s negligence claim fails. 

Shannon proffers evidence that jail officers were aware that 

(1) Shannon was testifying against another inmate, (2) that a 

testifying inmate was under greater risk of harm from other 

inmates, and (3) that inmates had assaulted Shannon for being a 

snitch twice before Perez’s attack. He also relies on the Jail’s 

written policy of placing testifying inmates in protective 

custody. While Defendants argue that the Sheriff’s Department 

used reasonable care by issuing the “keep separate” order, Widup 

testified that if he had been aware that Shannon was testifying 

against another inmate, Shannon would have been relocated. Widup 

also testified that Shannon would not have been injured if he had 

been provided protective custody. The Court finds that whether 
31 

the Sheriff’s Department used reasonable care to preserve 

Shannon’s safety under the circumstances is a material fact in 

dispute. As such, Defendants’ motion for summary judgment on the 

negligence claim against the Sheriff’s Department is denied. 

CONCLUSION 

For the reasons set forth above, Defendants’ Motion for 

Summary Judgment (DE #23) is GRANTED IN PART and DENIED IN PART. 

The motion is GRANTED as to: (1) the 42 U.S.C. § 1983 claims 

against David E. Lain and the Porter County Sheriff’s Department; 

(2) the civil conspiracy and state constitutional claims; and (3) 

the intentional infliction of emotional distress claim. These 

claims are DISMISSED, and defendant David E. Lain is DISMISSED

from this case. The motion is DENIED as to: (1) the 42 U.S.C. § 

1983 claim against John Widup in his individual capacity; (2) the 

issue of qualified immunity for John Widup; and (3) the negligence 

claim against the Porter County Sheriff’s Department. 

DATED: September 11, 2017 /s/ RUDY LOZANO, Judge 

 United States District Court