United States District Court, S.D. Illinois
KEVIN J. ICKES, Plaintiff,
FERNANDO CASTELE, P.A. BROOKS, DR. HARVEY, ADMINISTRATOR BAGWELL, NURSE CUNNINGHAM, NURSE HARBORSON, and UNKNOWN PARTIES, Defendants.
J. Ickes, Plaintiff, Pro Se.
Fernando Castillo, Defendant, represented by David J.
Pfeffer, Assistant U.S. Attorney.
Brooks, Defendant, represented by David J. Pfeffer, Assistant
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS, Magistrate Judge.
matter comes before the Court on Defendants Harvey, Bagwell,
Cunningham, and Harborson's Motion for Summary Judgment.
(Doc. 36.) Plaintiff Kevin Ickes has filed a response to the
Motion. (Doc. 41.) The matter has been referred to United
States Magistrate Judge Stephen C. Williams by United States
District Judge J. Phil Gilbert pursuant to 28 U.S.C. Â§Â§
636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b),
and Local Rule 72.1(a). It is RECOMMENDED that the District
Court ADOPT the following findings of fact and conclusions of
law, and GRANT Defendants' Motions for Summary Judgment.
filed a Complaint in this case on August 14, 2015. (Doc. 1.)
According to Plaintiff's Complaint, Ickes was placed on a
"no prolonged standing" restriction while serving
in the military due to spinal disc bulges, degeneration, and
other spinal issues. (Doc. 1, p. 6; Doc. 9, p. 2.) When he
was subsequently incarcerated in federal prison, Plaintiff
provided his medical records to prison staff, and his
"no prolonged standing" restriction was continued.
( Id. ) Four years later, on August 21, 2013, the
prison medical staff at Marion had a "health services
meeting", where the staff reviewed Plaintiff's
medical status and removed his "no prolonged
standing" restriction. ( Id. ) Plaintiff claims
that "no circumstances warranted the removal" of
the restriction, and that the decision was completely
arbitrary. ( Id. ) As a result of the medical
staff's decision, Plaintiff alleges that he was forced to
stand for long periods of time in various lines at Marion,
which caused him to endure escalating pain and worsening
spinal problems. ( Id. ) Plaintiff filed three
grievances and a tort claim with the Bureau of Prisons
concerning the decision; the grievances were denied and the
tort claim was rejected. ( Id. ) On May 6, 2015,
Plaintiff's "no prolonged standing" restriction
was reinstated. ( Id. ) Plaintiff subsequently filed
his Complaint, alleging deliberate indifference to his
serious medical needs and medical malpractice. (Doc. 1, p.
conducting its review under 28 U.S.C. Â§ 1915A, the Court
narrowed Plaintiff's claims to two counts: (Count 1) a
Bivens claim under the Eighth Amendment for
deliberate indifference to Plaintiff's serious medical
needs against Defendants Castele, Brooks, Harvey, Bagwell,
Cunningham, Harborson, and the unknown parties; (Count 2) a
claim under the Federal Tort Claims Act ("FTCA")
for negligent medical care against the United States. (Doc.
9, pp. 3-4.) Plaintiff's FTCA claim against the United
States was ultimately dismissed without prejudice for failure
to provide the required state law merit affidavit pursuant to
735 ILCS 5/2-622(a). (Doc. 9, p.4.) Thus, the only claim that
remains is Plaintiff's deliberate indifference claim,
response to Plaintiff's Complaint, all Defendants filed
an Answer. (Doc. 35.) Additionally, Defendants Harvey,
Bagwell, Cunningham, and Harborson filed a Motion for Summary
Judgment on the basis of immunity. (Doc. 36.) In the Motion,
Defendants argued that they are immune from suit in their
individual capacity as United States Public Health Service
("USPHS") officers. (Doc. 36.) See 42
U.S.C. Â§ 233(a). To support their Motion, Defendants
submitted a declaration of Captain George Durgin as Exhibit A
in their Motion. (Doc. 36-1.) In Exhibit A, Captain George
Durgin is identified as the Commissioned Corps Liaison,
Recruitment and Staffing Section, Health Services Division of
the Federal Bureau of Prisons. (Doc. 36-1, p.1.) As the
Commissioned Corps Liaison, Captain Durgin explains that he
has access to the "billet descriptions and detail
history of all USPHS officers who were detailed to the
BOP." (Doc. 36-1, p.1.) Captain Durgin states that
Defendants Harvey, Bagwell, Cunningham, and Harborson were
active duty commissioned officers of the USPHS at Marion
during the events described by the Plaintiff. (Doc. No. 36-1,
p.2.) Based on the declaration of Captain Durgin, Defendants
Harvey, Bagwell, Cunningham, and Harborson argue that they
are immune from suit in their individual capacities. (Doc.
response to Defendants' Motion, Plaintiff concedes that
the Defendants' Motion for Summary Judgment should be
granted as to the basis of immunity. (Doc. 41.) However,
Plaintiff argues that the immunity of Defendants Harvey,
Bagwell, Cunningham, and Harborson is the reason that the
Unites States should be reinstated as a Defendant under the
FTCA. (Doc. 41, p.2.) Previously, Plaintiff filed a Motion to
Reinstate the United States of America as a Defendant on
October 19, 2015 as a response to the Court's dismissal
of Count 2 of his Complaint. (Doc. 22; Doc. 9, p.4.) The
Court denied Plaintiff's Motion on March 8, 2016. (Doc.
44.) Once again, the Plaintiff argues that the United States
should be reinstated as a Defendant, while responding to the
Defendants' Motion. (Doc. 41, p.2.)
Summary Judgment Legal Standard
of the Federal Rules of Civil Procedure governs summary
judgment motions. The rule states that summary judgment is
appropriate only if the admissible evidence considered as a
whole shows there is no genuine issue as to any material
fact, and then movant is entitled judgment as a matter of
law. Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d
506, 517 (7th Cir. 2011) ( citing Fed.R.Civ.P.
56(a)). The party seeking summary judgment bears the initial
burden of demonstrating - based on the pleadings, affidavits
and/or information obtained via discovery - the lack of any
genuine issue of material fact. Celotex Corp. v.
Catrett,477 U.S. 317 323 (1986). After a properly
supported motion for summary judgment is made, the adverse
party "must set forth specific facts showing that there
is a genuine issue for trial." Anderson v. Liberty
Lobby, Inc.,477 U.S. 242, 250 (1986) ( qu ...