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Rackemann v. Robinson

United States District Court, S.D. Indiana, Terre Haute Division

September 27, 2019

KENNETH RACKEMANN, Plaintiff,
v.
REGINA ROBINSON; DR. SAMUEL J. BYRD; KIM HOBSON; DR. BHANAT DAVE; DR. MARY CHAVEZ; Defendants.

          Jeb Adam Crandall Bleeke Dillon Crandall Attorneys.

          Christopher Andrew Farrington Bleeke Dillon Crandall Attorneys

          ORDER GRANTING DEFENDANT DR. BHANAT DAVE’S MOTION FOR SUMMARY JUDGMENT

          JAMES R SWEENEY II. JUDGE UNITED STATES DISTRICT COURT

         Indiana prison inmate Kenneth Rackemann filed this lawsuit on May 16, 2018, seeking damages against the defendants for deliberate indifference to his serious medical needs. Mr. Rackemann asserts his claims under the Eighth Amendment pursuant to 42 U.S.C. § 1983. Defendant Dr. Bhanat Dave is a Terre Haute physician in private practice who sometimes treats prisoners at the Terre Haute hospital. Asserting, among other things, that he is not a state actor, he seeks summary judgment on that basis. Dkt. 40. For the reasons that follow, the Court holds that Dr. Dave is not a state actor and therefore not liable under § 1983. His motion for summary judgment is granted and the amended complaint against him is dismissed with prejudice.

         I. Summary Judgment Standard

         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.” Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of designated evidence that demonstrate the absence of a genuine issue of material fact. See 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) (quotation marks and citation omitted).

         A factual issue is material only if resolving the factual issue might change the outcome of the case under the governing law. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. See Anderson, 477 U.S. at 248. In deciding a motion for summary judgment, the Court may not “assess the credibility of witnesses, choose between competing reasonable inferences, or balance the relative weight of conflicting evidence.” Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 619 (7th Cir. 2010). Instead, it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party. See Anderson, 477 U.S. at 255.

         II. Facts of the Case

         The following statement of facts was evaluated and formed pursuant to the standard set forth above. That is, this statement of facts is not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and any disputed evidence are presented in a light most reasonably favorable to Mr. Rackemann as the non-moving party with respect to Dr. Dave’s motion for summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). In his response to Dr. Dave’s motion, Mr. Rackemann did not address most of Dr. Dave’s statements of undisputed fact. When Mr. Rackemann argues facts contrary to Dr. Dave’s statement of facts, the Court will note the disagreement if it is material. Otherwise, Dr. Dave’s statements of undisputed fact are accepted as true where Mr. Rackemann has not contested them and provided relevant evidence for his assertions. See Fed. R. Civ. P. 56(e)(2).

         At all times material to this lawsuit, Mr. Rackemann was an Indiana prison inmate incarcerated at the Wabash Valley Correctional Facility (WVCF). Dkt. 10 (Amended Complaint). Dr. Dave is a physician and urologist employed by HCA Physician Services, Inc. Dkt. 40-2, ¶ 5 (Affidavit of Dr. Dave). He is not an employee of Terre Haute Regional Hospital. Id. Dr. Dave is not an employee of the State of Indiana and does not have a contract with any government entity to provide medical services to prisoners. Id., ¶¶ 5 & 20. Because of Terre Haute’s proximity to several prisons, Dr. Dave occasionally treats prisoners, but they make up less than 1% of his practice. Id., ¶ 21. HCA Physician Services, Inc., did not have a contract with any government entity to provide medical services to prisoners. Id., ¶ 24.

         Mr. Rackemann was brought to the Terre Haute Regional Hospital emergency department on December 3, 2016, complaining of pain in his left flank. Dkt. 40-2, ¶ 7. He was seen in the emergency department and treated for kidney stones by Dr. Dave. Id. Follow-up visits with Dr. Dave occurred on January 13, 2017, April 13, 2017, and June 1, 2017, at the Terre Haute hospital. Id., ¶¶ 10-15.

         III. Discussion

         Mr. Rackemann alleges that Dr. Dave is a state actor liable to him under § 1983 for violating his Eighth Amendment rights by being deliberately indifferent and negligent to Mr. Rackemann’s serious medical needs. Id. Negligence is not a viable claim under § 1983 and Mr. Rackemann did not assert a state law claim of negligence. Id.; see also dkt. 11. The Court’s screening order of August 14, 2018, identified only Eighth Amendment claims in Mr. Rackemann’s amended complaint and ordered that they would proceed. Dkt. 11. Mr. Rackemann was allowed time to notify the Court of any overlooked claims, but he did not identify any. Additionally, the pretrial schedule entered November 6, 2018, provided a deadline for the parties to amend their pleadings, see dkt. 39, but Mr. Rackemann did not further amend his amended complaint. Thus the Court is concerned here solely with whether Dr. Dave may be liable to Mr. Rackemann under Eighth Amendment claim and pursuant to § 1983.[1]

         To state a claim for relief under § 1983, a plaintiff must allege that he was deprived of a right secured by the Constitution or the laws of the United States, and that this deprivation occurred at the hands of a person or persons acting under the color of state law – a so-called “state actor.” D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). “State actors” can be very generally defined as government employees or those acting on the government’s behalf. Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 923–24 (1982). However, “[p]rivate facilities and their employees do not engage in state action by virtue of their participation in [a state legal] process.” de Vryer v. ...


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