Early v. Shepherd

          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

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT.

         Plaintiff 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.

         I. Summary Judgment Motion

         Defendant 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 [79], is granted in part and denied in part.

         A. Legal Standard and Factual Background

         Federal 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.

         Defendant Shepherd is in the Public Health Service and has been detailed to FCC Terre Haute as the Chief Dental Officer since August 31, 1998.

         Mr. Early asserts claims for violations of his civil rights.^[1] 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.

         Mr. 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.

         B. Discussion

         Congress 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)).

         To 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).

         In 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 time period.

         As for 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 ...