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Ickes v. Castele

United States District Court, S.D. Illinois

July 29, 2016

KEVIN J. ICKES, Plaintiff,
v.
FERNANDO CASTELE, P.A. BROOKS, DR. HARVEY, ADMINISTRATOR BAGWELL, NURSE CUNNINGHAM, NURSE HARBORSON, and UNKNOWN PARTIES, Defendants.

          Kevin 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 U.S. Attorney.

          REPORT AND RECOMMENDATION

          STEPHEN C. WILLIAMS, Magistrate Judge.

         INTRODUCTION

         This 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. §§ 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. (Doc. 36.)

         FINDINGS OF FACT

         Plaintiff 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. 6.)

         In conducting its review under 28 U.S.C. § 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, Count 1.

         In 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. § 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. 36, p.4.)

         In his 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.)

         CONCLUSIONS OF LAW

         A. Summary Judgment Legal Standard

         Rule 56 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 ...


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