United States District Court, S.D. Indiana, Terre Haute Division
Adam Crandall Bleeke Dillon Crandall Attorneys.
Christopher Andrew Farrington Bleeke Dillon Crandall
ORDER GRANTING DEFENDANT DR. BHANAT DAVE’S
MOTION FOR SUMMARY JUDGMENT
R SWEENEY II. JUDGE UNITED STATES DISTRICT COURT
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
Summary Judgment Standard
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
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.
Facts of the Case
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).
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.
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.
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 §
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