United States District Court, S.D. Indiana, Terre Haute Division
LOUIS H. EARLY, Plaintiff,
R. D. SHEPHERD, KIMBERLY RHOADS, CHRISTOPHER McCOY, Defendants.
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANT
SHEPHERD'S MOTION FOR SUMMARY JUDGMENT,
SUBSTITUTING CERTAIN CLAIMS AND DEFENDANTS,
AND DISCUSSING PENDING DISCOVERY MOTIONS
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT.
Louis H. Early is a federal inmate confined at the Federal
Correctional Institution in Terre Haute, Indiana (“FCI
Terre Haute”). He alleges that his civil rights have
been violated. After screening the Amended Complaint, the
Court determined that Mr. Early's claim that Ronald
Douglas Shepherd, Kimberly Rhoads, and Christopher McCoy
retaliated against Mr. Early in violation of his First
Amendment rights and denied him necessary dental care in
violation of his Eighth Amendment rights could proceed. These
claims are brought pursuant to the theory recognized in
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971). See Dkt. No. 27.
Summary Judgment Motion
Shepherd now seeks dismissal of the claims alleged against
him. He argues that he is entitled to summary judgment
because he is immune from suit under the Public Health
Service Act, 42 U.S.C. § 233(a). Mr. Early has opposed
the motion for summary judgment and Mr. Shepherd has replied.
For the reasons explained below, Mr. Shepherd's motion
for summary judgment, dkt , is granted in part
and denied in part.
Legal Standard and Factual Background
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” “A
factual dispute is ‘genuine' only if a reasonable
jury could find for either party.” Nichols v.
Michigan City Plant Planning Dept., 755 F.3d 594, 599
(7th Cir. 2014) (citation and internal quotation marks
omitted). The following facts are undisputed.
Shepherd is in the Public Health Service and has been
detailed to FCC Terre Haute as the Chief Dental Officer since
August 31, 1998.
Early asserts claims for violations of his civil
rights. Specifically, Mr. Shepherd, as well as
co-defendants Kimberly Rhoads and Christopher McCoy, who all
worked at FCI Terre Haute, were deliberately indifferent to
Mr. Early's serious dental needs (in particular a
periapical abscess on his lower left jaw area). They also
retaliated against Mr. Early when Mr. Early sought assistance
from prison officials in order to receive necessary,
emergency dental treatment.
Early alleges that Mr. Shepherd took affirmative steps to
retaliate against Mr. Early for his complaints about his lack
of treatment. For example, following Mr. Early's
appointment on May 5, 2015, Mr. Shepherd took steps to have
Mr. Early's cell searched for contraband. Mr. Shepherd
also took Mr. Early off of the waiting list for dental
treatment, thus denying him normal dental care. Finally, he
created medical records that did not accurately reflect Mr.
Early's dental treatment and contributed to the continued
denial of care.
has mandated that certain classes of persons, including
officers and employees of the Public Health Service, are
absolutely immune from damages arising from their official
activities. 42 U.S.C. § 233(a). Officers and employees
of the Public Health Service are immune from civil suit for
damages for personal injury “resulting from the
performance of medical, surgical, dental, or related
functions.” 42 U.S.C. § 233(a). The exclusive
remedy for these actions lies in the Federal Tort Claims Act.
Id. See Hui v. Castaneda, 559 U.S. 799, 806, 812
(2010) (“Section 233(a) grants absolute immunity to
Public Health Service officers and employees for actions
arising out of the performance of medical or related
functions within the scope of their employment by barring all
actions against them for such conduct” and concluding
that “[t]he immunity provided by § 233(a)
precludes Bivens actions against individual [Public
Health Service] officers or employees for harms arising out
of conduct described in that section.”); see also
Collier v. Caraway, 2:14-cv-365-JMS-WGH, 2016 WL 233629
(S.D. Ind. Jan. 20, 2016) (dismissing claims of deliberate
indifference to a serious medical need and retaliation as
barred by absolute immunity under § 233(a)).
obtain protection under § 233(a), Mr. Shephard must
satisfy two prongs: (1) he must be a “commissioned
officer or employee of the Public Health Service”, and
(2) he must have acted “within the scope of his office
or employment” at the times relevant to the suit. 42
U.S.C. § 233(a). See Thelen v. Gregory, No.
15-CV-1015-JPG-SCW, 2016 WL 4939368, at *6 (S.D. Ill. June
29, 2016) (employing the two-prong approach).
establishing the first prong, Mr. Shepherd provides a
declaration from Captain George Durgin from the United States
Public Health Service (“USPHS”). Dkt. 80-1. In
the affidavit, Captain Durgin affirms Mr. Shepherd to be an
active duty commissioned officer of the USPHS since 1994.
(Doc. 61-1). He affirms that Mr. Shepherd has been detailed
to the BOP's FCC Terre Haute as its Chief Dental Officer
since August 31, 1998. Mr. Early does not dispute that Mr.
Shepherd was an employee of the USPHS during the relevant
the second prong, Mr. Shepherd argues that the complaint
alleges that Mr. Shepherd violated Mr. Early's rights in
conjunction with his duties to provide dental services at FCC
Terre Haute. Mr. Shepherd claims that the allegations reflect
that he was acting ...