United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 90) of
Magistrate Judge Stephen C. Williams with regard to defendant
Esquibel's Motion (Doc. 57) to Dismiss; defendant
Gregory's Motion (Doc. 58) to Dismiss; all
Defendants' Motion (Doc. 59) for Summary for Failure to
Exhaust as to Count IV; and defendant Hardin's Motion
(Doc. 61) for Summary Judgment on Count I. Plaintiff filed a
timely objection to the R & R (Doc. 92) and the
defendants filed a response (Doc. 95) to the objection.
Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. The Court has discretion to
conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed
necessary. Id. “If no objection or only
partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Court has received an objection from the plaintiff and
will review de novo those portions of the report.
the Plaintiff states that he agrees and has no objection to
the dismissal of Count IV and also with the R & R's
recommendation that defendants Esquibel's and
Gregory's motions to dismiss be denied. The only
objection that the plaintiff is putting forth is with regard
to the recommendation that defendant Hardin's Motion for
Summary Judgment be granted. As such, the court will only
review de novo that portion of the R & R
addressing defendant Hardin's motion and will review the
remaining unobjected portions for clear error.
to the complaint, Defendant Hardin is medical doctor who
prescribed the anti-fungal medication Clotrimazole which the
plaintiff states was ineffective in treating his infection.
Plaintiff further states that Dr. Hardin had actual knowledge
of the plaintiff's infection and refused to provide the
plaintiff with effective and necessary medical treatment.
& R recommends that Dr. Hardin's Motion for Summary
Judgment be granted because under 42 U.S.C. § 233(a),
United States Public Health Service Officers are immune from
suits brought pursuant to Bivens. In order to
exercise immunity, Dr. Hardin must be a “commissioned
officer or employee of the Public Health Service while acting
within the scope of his office or employment.” 42
U.S.C. § 233(a).
plaintiff admits that Dr. Hardin is a United States Public
Health Service Officer; however, he argues that Dr. Hardin
was not within the scope of his office or employment because
he was not licensed to practice medicine within the State of
Illinois. Plaintiff cites to 42 U.S.C.
233(h)(2) which provides that the Secretary may not
approve an application for a Public Health Service Officer
unless the Secretary, “has reviewed and verified the
professional credentials, references, claims history,
fitness, professional review organization findings, and
license status of its physician or other licensed or
certified health care practitioners.”
as noted by the defendant, a Public Health Service Officer is
only required to maintain, “[a] current, unrestricted,
and valid medical license from a U.S. State.” There is
no requirement that the state medical license be in the state
- or for that matter - in each state in which the Public
Health Service Officer is practicing. Dr. Hardin is licensed
by the Tennessee Board of Medical Examiners and was so at the
time of his treatment of the plaintiff. As such, he meets the
requirements for a Public Health Service Officer and falls
within the immunity provided by 42 U.S.C. § 233(a).
plaintiff argues that he was not permitted to conduct
discovery with regard to Dr. Hardin's licensing. As the
defendant has attached a copy of the letter from the
Tennessee Board of medical Examiners demonstrating Dr.
Hardin's license number, date of issue, expiration date,
and license status. Therefore, any further discovery on this
issue would be futile.
Court has reviewed Dr. Hardin's Motion for Summary
Judgment de novo and finds that Dr. Hardin falls
within the immunity provided by 42 U.S.C. § 233(a). The
Court further finds that the unobjected to portions of the R
& R are not clearly erroneous. Therefore, the Court
hereby ADOPTS the Report and Recommendation (Doc. 90) in its
entirety. Defendants' Motion (Doc. 59) for Summary
Judgment for Failure to Exhaust as to Count IV is GRANTED and
Count IV is DISMISSED without prejudice. Defendant
Hardin's Motion (Doc. 61) for Summary Judgment on Count I
is GRANTED and Defendant Hardin is DISMISSED from Count I.
Finally, Defendants Esquibel's and Gregory's Motions
to Dismiss (Docs. 57 & 58) are DENIED.
Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999