United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTIONS FOR EXTENSION OF TIME TO FILE
A SURREPLY AND DENYING MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge United States District
Antoine Jones brought this civil rights action pursuant to 42
U.S.C. § 1983. He alleges that Officer Vululleh failed
to intervene to protect him during an altercation with
another offender at the Correctional Industrial Facility, in
violation of his Eighth Amendment rights. Presently pending
before the Court is Officer Vululleh's motion for summary
judgment. Mr. Jones's two motions asking for an extension
of time to file a surreply, dkts.  and , are
granted. For the reasons explained below,
Officer Vululleh's motion for summary judgment, dkt.
, is denied.
Summary Judgment Legal Standard
judgment is appropriate when the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). A “material
fact” is one that “might affect the outcome of
the suit.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). To survive a motion for summary
judgment, the non-moving party must set forth specific,
admissible evidence showing that there is a material issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The Court views the record in the light most
favorable to the non-moving party and draws all reasonable
inferences in that party's favor. Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It
cannot weigh evidence or make credibility determinations on
summary judgment because those tasks are left to the
fact-finder. O'Leary v. Accretive Health, Inc.,
657 F.3d 625, 630 (7th Cir. 2011).
dispute about a material fact is genuine only “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. If no reasonable jury could find for the
non-moving party, then there is no “genuine”
dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).
following statement of facts was evaluated pursuant to the
standard set forth above. That is, this statement of facts is
not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light reasonably most favorable
to Mr. Jones as the non-moving party with respect to the
motion for summary judgment. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
February 20, 2016, Mr. Jones was an offender incarcerated at
the Pendleton Correctional Industrial Facility. See
dkt. 62-2 at 9 (Jones Depo. at 13:1-15). Officer Vululleh was
working as a Correctional Officer on that day. Dkt. 62-1 at
¶ 1. For some period of time until February 20, 2016,
Mr. Jones shared a cell (cell 8B-2D) with Ricky Outlaw. Dkt.
62-2 at 14, 20-21 (Jones Depo. at 20:5-12, 26:11-27:4). The
cell they shared was fairly small, shut by a solid door with
two windows, no cuff port, and a gap to the ground almost
2” in height. Dkt. 62-2 at 15-18 (Jones Depo. at
21:12-24:8); dkt. 62-3 at 2; dkt. 73-1; dkt. 73-2 at 2 (photo
of door with ruler in the gap). Although Outlaw had a history
of argumentative and violent behavior (see dkt. 62-2
at 22-24 (Jones Depo. at 28:7-30:16)), Mr. Jones was not
concerned about Outlaw. Dkt. 62- 2 at 25 (Jones Depo. at
31:5-16). He had never expressed any concerns to anyone,
including Indiana Department of Corrections employees, that
he had any concerns about Outlaw prior to February 20. Dkt.
62-2 at 50-51 (Jones Depo. at 61:24-62:7). Nor did Mr. Jones
request protective custody as to Outlaw. Dkt. 62-2 at 56
(Jones Depo. at 67:4-22). Until February 20, they had never
had a verbal argument or a physical fight. Dkt. 62-2 at 25
(Jones Depo. at 31:17-22). On this date, Outlaw was
approximately 5'7” tall and weighed between 160-165
pounds, while Mr. Jones was almost 6'5” tall and
weighed about 278 pounds. Dkt. 62-2 at 26 (Jones Depo. at
time on the evening of February 20, 2016, Outlaw had just
microwaved a cup of hot coffee when Mr. Jones and Outlaw went
back to their cell because Outlaw allegedly wanted to talk to
him. Dkt. 62-2 at 27 (Jones Depo. at 33:12-24), dkt. 73-4 at
17 (Jones Depo. at 52:20-24). Mr. Jones closed the door
behind him when they entered the cell. Dkt. 62-2 at 28 (Jones
Depo. at 34:2). At that point, Outlaw began to pick a fight
with Mr. Jones, and Outlaw and Mr. Jones entered into a loud
verbal argument. Dkt. 62-2 at 28-29 (Jones Depo. at
around 11:13pm, Officer Vululleh was conducting a security
check of the area. Dkt. 62-1 at ¶ 2. A video camera
captured Officer Vululleh outside of Mr. Jones and
Outlaw's room at 11:13:12pm. Dkt. 70-1 at 3. Officer
Vululleh states that he could see that Mr. Jones and Outlaw
were involved in a verbal argument. Dkt. 62-1 at ¶ 3.
Jones was facing the door with Outlaw blocking his way to the
door and could see Officer Vululleh through the window. Dkt.
62-2 at 35, 37-38 (Jones Depo. at 41:11-23, 43:23-44:1). Mr.
Jones then told Outlaw, “Police at the door.”
Dkt. 62-2 at 29 (Jones Depo. at 35:6-7). Outlaw looked back
at Officer Vululleh - Mr. Jones characterizes the expression
on Officer Vululleh's face as a “smirk” with
an “it's okay” look.” Dkt. 62-2 at 29,
47-49 (Jones Depo. at 35:8-20, 58:23-59:2). Outlaw then
turned back and threw his cup of hot coffee at Mr. Jones.
Dkt. 62-1 at ¶ 4; dkt. 62-2 at 29, 48 (Jones Depo. at
35:8-20, 59:12-19). Mr. Jones screamed to Officer Vululleh to
come into the cell - Officer Vululleh did not and took no
action. Dkt. 62-2 at 29, 36-37 (Jones Depo. at 35-21:23,
42:25-43:3). Outlaw produced a knife or mirror shard from
some unknown place (dkt. 62-2 at 37 (Jones Depo. at
43:12-20)) and began stabbing Mr. Jones in the face and neck,
causing severe blood loss and lacerations. Dkt. 62-2 at
29-30, 38 (Jones Depo. at 35:23-36:17, 44:1-3, 44:15-20),
dkt. 73:4 at 13 (Jones Depo. at 48:2-17), 68-1 at 7 (image of
scarred face), 75-1 at 19 (image of scarred face). Mr. Jones
continued to yell out to Officer Vululleh to open the door,
stating “[Outlaw] got a knife.” Dkt. 62-2 at 37,
49 (Jones Depo. at 43:21-23, 60:8-9), dkt. 73-4 at 12 (Jones
Depo. at 47:12-13); dkt. 62-3 at 2. Mr. Jones attempted to
defend himself by punching at Outlaw. Dkt. 62-1 at ¶ 5;
dkt. 62-2 at 37-38 (Jones Depo. at 43:2-20, 44:1-3). Officer
Vululleh continued to take no action. Dkt. 62-2 at 30, 37-38
(Jones Depo. at 36:9-10, 43:21-44:1), dkt. 73-4 at 12 (Jones
Depo. at 47:24-25). At some point, Mr. Jones was finally able
to overpower Outlaw and held him down on the ground. Dkt.
62-1 at ¶ 6; dkt. 62-2 at 30, 38 (Jones Depo. at
36:9-10, 44:1-3). During the fight up to this point, Officer
Vululleh held the door closed and did not call for backup or
order them to stop fighting. Dkt. 68-1 at 9 (¶¶
13-14), 11 (¶¶ 14-15). At some point soon after Mr.
Jones was able to get Outlaw to the ground, Officer Vululleh
called a “signal 10-10” over his radio and ordered
Mr. Jones and Outlaw to stop fighting (dkt. 62-1 at ¶
7), yelling “Get off of him. Get off of him. Stop
fighting.” Dkt. 62-2 at 30, 38 (Jones Depo. at
36:13-15, 44:4-7). Mr. Jones and Outlaw complied and stopped
fighting. Dkt. 62-1 at ¶ 12.
is some dispute as to the timing of when and why Officer
Vululleh called for backup. Officer Vululleh appears to
allege that he called for backup contemporaneously with
ordering Mr. Jones and Outlaw to stop fighting. Dkt. 62-1 at
¶ 7; see also dkt. 7-1 at 2 (“I ordered
them to stop fighting and called a 10-10.”). Mr. Jones
alleges that Officer Vululleh did not call for backup until
well after the fight had ended and not until Mr. Jones ran to
the door and begged Officer Vululleh to call for backup. Dkt.
62-2 at 30-31, 49 (Jones Depo. at 36:23-25, 37:13-14,
60:10-61:1). Two witnesses, James Lynn and Claude Arender,
assert that it was not until about 30-45 seconds after the
fight ended that Officer Vululleh got on the radio to ask for
assistance. Dkt. 68-1 at 9 (¶ 16), 11 (¶ 17).
Backup arrived at 11:14:40pm (dkt. 70-1 at 3), or what felt
like seconds to Mr. Jones. Dkt. 62-2 at 64 (Jones Depo. at
37:1), dkt. 73-4 at 16 (Jones Depo. at 51:17-20). Outlaw did
not suffer any injuries from this fight. Dkt. 73-4 at 17
(Jones Depo. at 52:7-10).
Vululleh did not enter the cell until backup arrived. Dkt.
62-1 at ¶ 9. He alleges that is because “by
entering a small enclosed cell with two offenders who were
fighting, he would have jeopardized his own safety along with
the safety of other offenders and staff in the D unit.”
Dkt. 62-1 at ¶ 9. He also thought there could be a
weapon present in the cell. Dkt. 62-1 at ¶ 10.
Additionally, he states that, without opening the door (and
endangering himself and other inmates), he could not spray a
chemical agent (such as mace) into the cell as the door did
not contain a cuff port. Dkt. 62-1 at ¶ 11. In the
incident report form from February 20, 2016, Officer Vululleh
stated that “he waited to open the door until backup
arrived because when he saw the blood he thought there could
be a weapon.” Dkt. 70-1 at 2.
next day, while Mr. Jones was in the medical unit, Officer
Vululleh came by with a Conduct Report. Dkt. 62-2 at 31
(Jones Depo. at 37:19-25). Mr. Jones asked Officer Vululleh
why he failed to help Mr. Jones. Dkt. 62-2 at 31, 33, 35, 53
(Jones Depo. at 37:19-20, 39:19-22, 41:7-10, 64:1-4). Officer
Vululleh replied, “I didn't want to spray my
guy.” Dkt. 62-2 at 31, 33, 35, 53 (Jones Depo. at
37:21, 39:23-24, 41:7-10, 64:1-4). Mr. Jones asked him again
something to the effect of either “so you was going to
let him kill me?” or why did Officer Vululleh fail to
help by spraying mace. Dkt. 62-2 at 31, 35 (Jones Depo. at
37:22, 41:7-10). Officer Vululleh reiterated, “I just
didn't want to spray my guy.” Dkt. 62-2 at 31, 35
(Jones Depo. at 37:23, 41:7-10). Mr. Jones is confident that
he was not the “my guy” referred to by Officer
Vululleh, and that it referred to ...